Mabry, J.:
The first assignment of error, that the court erred in overruling the motion for a new trial, involves all the questions presented for our review. "We will first consider the exceptions to the charges of the court.
The second assignment of error relates to a portion of the first charge given to the jury. After reciting [747] the statute under which defendants were indicted, the Judge proceeded to charge the jury, as shown by the bill of exceptions, that “this offense, like offenses of a kindred character, and particularly offenses that, carried on or perpetrated, are perpetrated in secret,” &c. This portion of the charge was excepted to in the motion tor a new trial. The objection to it urged here is that it is calculated to convey to the minds of the jurors the impression that the offense for which defendants were indicted was perpetrated secretly, whereas, in order to constitute the offense, there must be a living together openly as if the conjugal relation existed between them. This' court has considered the nature of this offense, and also what must be proven to constitute it. Luster et al. vs. State, 23 Fla., 339; Brevaldo vs. State, 21 Fla., 789. The terms “not being married to each other,” and “lewdly and lasciviously associate and cohabit together,” clearly indicate that the statute Avas designed to apply to cases where a man and woman, not being married to each other, live together as husband and Avife live together, Avithout the sanction of the marital tie. There is necessarily included in this offense both lewd and lascivious intercourse and a living or dwelling together as if the relation of husband and wife existed. Jones vs. Commonwealth, 80 Va., 18; Commonwealth vs. Munson, 127 Mass., 459. The leAvd and lascivious intercourse is almost always secret, and in the very nature of the case the evidence of it must, to a considerable extent, be circumstantial, but the association and [748] cohabitation, must be so far open as to offend public decency, cause scandal or tend to corrupt public morals. The intention of the Judge evidently was to inform the jury that the lewd and lascivious association, like offenses kindred to it, is perpetrated in secret. This is manifested by what immediately follows as part of the same charge. After using the language excepted to, the Judge in the same connection charged, “and the proof of its existence must of necessity depend in many cases largely on circumstances proven going to show the guilt or innocence of the accused.” This exception, however, is to a portion of the charge only. We cannot eliminate this portion and test its accuracy without any reference to the remainder of the charge on the same question. Smith vs. Bagwell, 19 Fla., 117 ; Andrews vs. State, 21 Fla., 598. In connection with the language excepted to, the Judge charges the jury that “it is sufficient if the facts and circumstances proven are such as to satisfy your minds beyond a reasonable doubt that the defendants associated and cohabited together habitually as husband and wife, or as though the married or conjugal relation existed between them.” Taking the entire charge as to the nature and what was necessary to constitute the offense together, we think it reasonably certain that the jury could not have been misled by the portion of the charge to which exception was taken.
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Mabry, J.:
The first assignment of error, that the court erred in overruling the motion for a new trial, involves all the questions presented for our review. "We will first consider the exceptions to the charges of the court.
The second assignment of error relates to a portion of the first charge given to the jury. After reciting [747] the statute under which defendants were indicted, the Judge proceeded to charge the jury, as shown by the bill of exceptions, that “this offense, like offenses of a kindred character, and particularly offenses that, carried on or perpetrated, are perpetrated in secret,” &c. This portion of the charge was excepted to in the motion tor a new trial. The objection to it urged here is that it is calculated to convey to the minds of the jurors the impression that the offense for which defendants were indicted was perpetrated secretly, whereas, in order to constitute the offense, there must be a living together openly as if the conjugal relation existed between them. This' court has considered the nature of this offense, and also what must be proven to constitute it. Luster et al. vs. State, 23 Fla., 339; Brevaldo vs. State, 21 Fla., 789. The terms “not being married to each other,” and “lewdly and lasciviously associate and cohabit together,” clearly indicate that the statute Avas designed to apply to cases where a man and woman, not being married to each other, live together as husband and Avife live together, Avithout the sanction of the marital tie. There is necessarily included in this offense both lewd and lascivious intercourse and a living or dwelling together as if the relation of husband and wife existed. Jones vs. Commonwealth, 80 Va., 18; Commonwealth vs. Munson, 127 Mass., 459. The leAvd and lascivious intercourse is almost always secret, and in the very nature of the case the evidence of it must, to a considerable extent, be circumstantial, but the association and [748] cohabitation, must be so far open as to offend public decency, cause scandal or tend to corrupt public morals. The intention of the Judge evidently was to inform the jury that the lewd and lascivious association, like offenses kindred to it, is perpetrated in secret. This is manifested by what immediately follows as part of the same charge. After using the language excepted to, the Judge in the same connection charged, “and the proof of its existence must of necessity depend in many cases largely on circumstances proven going to show the guilt or innocence of the accused.” This exception, however, is to a portion of the charge only. We cannot eliminate this portion and test its accuracy without any reference to the remainder of the charge on the same question. Smith vs. Bagwell, 19 Fla., 117 ; Andrews vs. State, 21 Fla., 598. In connection with the language excepted to, the Judge charges the jury that “it is sufficient if the facts and circumstances proven are such as to satisfy your minds beyond a reasonable doubt that the defendants associated and cohabited together habitually as husband and wife, or as though the married or conjugal relation existed between them.” Taking the entire charge as to the nature and what was necessary to constitute the offense together, we think it reasonably certain that the jury could not have been misled by the portion of the charge to which exception was taken.
The third assignment of error is based upon another portion of the charge given by the court to the jury. [749] The first objection to the portion of the charge pointed out under this assignment of error is, that it is abstract and misleading, in that it relies on fictitious evidence. It is claimed by counsel for plaintiff in error that the court charged the jury as if the testimony showed that Pinson nursed Maggie as though she was his wife. We do not think this portion of the charge amenable to the criticism here made. The charge asserts that if the jury believe from the evidence, among other things, that during Maggie’s confinement the defendant Pinson had her attended to by a doctor, and nursed as though she was his wife, they might and should find a verdict of guilty. This does not charge as though Pinson did the nursing. The next objection to this portion of the charge is more serious. It is contended that here the Judge invaded the province of the jury, and assumed to draw from certain facts the inference of defendant’s guilt. By statute the trial judge can charge the jury only on the law of the case (McClellan’s Digest, p. 338, sec. 34). He is forbidden to charge the jury on the facts of the case. Fergerson v. Porter, 3 Fla., 27. The application of this rule has been illustrated in several cases before this court. The judge cannot assume in his charge to the jury that certain facts were proven, when the truth or falsity of such facts is submitted to the jury for their determination. Collins vs. State, 13 Fla., 651; Louisville & Nashville Railroad Co. vs. Yniestra, 21 Fla., 700. A charge that a patent to the plaintiff’s grantor, and a deed from such grantor to the plaintiff, [750] allow a fee simple title in liim, was held erroneous. Ashmead vs. Wilson, 22 Fla., 255; Baker vs. Chatfield, 23 Fla., 540. In Metzger vs. State, 18 Fla., 481, it was decided that it was improper for the judge to charge the jury that there was no conflicting evidence in the case, but as in that case there was no conflict of evidence, it was held to be a harmless error. Not only is the trial judge prohibited from charging the jury directly as to the sufficiency or weight of the evidence, or from assuming in his charge that certain facts in issue are proven, but he cannot draw an inference or presumption of fact from the evidence. He may charge as to the presumptions which the law by settled rule draws from given facts, but an inference of a fact, or the conclusion of the existence of a fact from some other fact or facts is always drawn by the jury who are the triers of questions of fact. 2 Thompson on Trials, sec. 2290. In the Case of Case vs. Weber, 2 Ind., 108, suit was instituted for obstructing a water course by a fish dam, to the injury of plaintiff s mill. The court was asked to give this instruction : “that if the fish-dam, the construction of which is complained of, is built three-quarters of a mile below the plaintiffs mill, and the jury believe from the evidence' that said darn is only one foot high, and that the fall of the water from the surface thereof below the plaintiffs mill-wheel to the surface thereof on the top of the fish-dam is nearly two feet, the jury must find for the defendants.” In discussing this charge requested, the court say : “It is [751] the duty of the court to instruct the jmy as to the law, to inform them of the legal sequence resulting from given facts. In this case the question of fact was whether the fish-dam threw the water back upon the plaintiffs mill-wheel, and the question of law was, whether, if it did, it was thrown back under such circumstances as rendered the defendants liable. The court was not bound to tell the jury that according to the'principles of natural philosophy or of physics, one fact necessáriy resulted as a consequence of another fact, and that is what it was asked to do in the instruction under consideration. * * * The instruction under consideration might have constituted a very good argument by counsel to convince the jury that the plaintiffs had not been injured, but we think they are' not such as the court was bound to give. ’ ’ Knight's Administrator vs. Vardeman, 25 Ala., 262; Easterling vs. State, 30 Ala., 46; White vs. Haas, 32 Ala., 430; Schneer vs. Lemp, 17 Mo., 142; Glover’s Administrators vs. Duhle, 19 Mo., 360; Union Mutual Life Ins. Co. vs. Buchanan, 100 Ind., 63; State vs. Lynott, 5 R. I., 295. In the portion of the charge excepted to under the assignment of error now being considered the Judge, in effect, directed the jury that if they believed from the evidence a certain state of facts mentioned in the charge, they may and should find the defendants guilty, unless that state of facts is explained by the evidence in some way consistent with the presumption of defendant’s innocence. This is virtually saying to the jury that the state of facts mentioned in the charge is inconsistent [752] with the innocence of defendants, and they should be convicted, unless the testimony removed the presumption of guilt arising from said state of facts. The state of facts mentioned by the Judge in his charge do not in law constitute the offense of which defendants were indicted. It was proper for the jury to consider this state of facts, and they might have, if deemed sufficient by them, deduced therefrom that the association or cohabitation ivas lewd and lascivious, but the direction to them in the charge, coming as it did from the court, was calculated to unduly influence them in arriving at such result. In order to convict the defendants, the evidence must satisfy the jury beyond a reasonable doubt that said defendants lived or dwelt together as husband wife in lewd and lascivious association. The jury was the sole judges of what facts and circumstances constituted such a living or dwelling together as husband and wife, and in a case like this where the lewd and lascivious intercourse depends upon circumstances, it was not permissible for the J udge to express his opinion to them as to the effect of the facts and circumstances mentioned in his charge. In this respect we think he trenched upon the exclusive province of the jury, in attempting to substitute his own inference for wfliat might have been theirs.
Counsel for plaintiff in error in his brief filed here says that assignments of error not referred to therein are abandoned. No reference is made in his brief to the fourth assignment of error, and the same is, therefore, expressly abandoned here. We do not think, [753] however, that the Judge erred in charging the jury as expressed in the portion of the charge excepted to under this assignment. It was simply a direction to the jury that they should consider all the facts and circumstances proven, and the particulars mentioned" by the Judge were illustrations of the application of the rule-given them. He does not say that they shall consider only the circumstances mentioned.
The fifth assignment or error calls in question a portion of the second charge given by the court to the j ury. The portion of the charge here assigned as error was not excepted to at the time it was given, or in a motion for a new trial. The record shows that in the motion for a new trial the only excejotion taken- to the second charge was to it as an entirety. The plaintiff in error having failed to except in the court below to the portion of the charge now assigned as error, cannot avail himself of such exception here; he must rely upon his exception to the entire charge. It is well settled that a general exception to a charge, or a general exception to several charges, will not be good if the charge or any one of the charges contain a correct proposition of law applicable to the case. Baker vs. Chatfield, 23 Fla., 540; Metzger vs. State, 18 Fla., 481. By a reference to the charge numbered two, it will be seen that it contains several correct statements of law applicable to the case before the jury. We are, therefore, unable to consider the portion of the charge here assigned as, error, and express no opinion as to it.
[754] The sixth assignment of error is, that the Judge refused to give the charge asked by plaintiff in error. The charge asked contains a correct statement of the law applicable to the case. The refusal of the Judge was not on the ground that the charge was erroneous, but because the same had been more correctly given. If the Judge had already given in substance to the jury the instruction asked, it was not error to refuse it. Metzger vs. State, 18 Fla., 481. We think the Judge charged fully in this case, andj.that the instruction asked by plaintiff in error is covered by portions of the charge given. The J udge could have given the charge asked without committing error, but his refusal after what he had charged onj the ¡same subject does not amount to error.
The seventh assignment of error cannot be sustained. There is nothing in the bill of exceptions showing that the Judge used the language assigned as error here. In his motion for a new trial, plaintiff in error assigned this as aground, but the recital in the motion does not afford evidence that the Judge used such language. For a full discussion on this point see the cases of Parrish vs. Pensacola & Atlantic R. R. Co., and Richardson vs. State, decided at this term.
For the error above pointed out, the judgment is reversed and a new trial awarded.