Bird v. State ( 1889 )

Willson, Judge.

Two modes of committing the crimes of adultery and fornication are prescribed by the Penal Code of this State. 1. By the parties living together and having carnal intercourse with each other. 2. By the parties having habitual carnal intercourse with each other, without living together. (Penal Code, arts. 333-337.) The articles cited became law upon the adoption of the Revised Code, and they changed materially the statutes then in force, relating to said offenses, and the changes made rendered inapplicable some rules and principles announced in decisions made under the former statutes. (Collum v. The State, 10 Texas Ct. App., 708.)

In the case before us, the defendant stands convicted of adultery, committed in the first mode named in article 333, by living together with one Ida Smith, and having carnal intercourse with her. To support such conviction it was essential that the State should prove not only that the parties had carnal intercourse with each other, but also that they lived together. A “living together” is not defined by the code. These words are, therefore, “to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed.” (Penal Code, art. 10.) Guided by this rule of construction, we are of the opinion that the term “living together,” as used in articles 333 and 337 of the Penal Code, means that the parties must dwell or reside together,— abide together in the same habitation as a common or joint residing place. This interpretation of the term is more restricted than has been given to it in decisions made under the former statutes. (Swancoat v. The State, 4 Texas Ct. App., 105; Parks v. The State, Id., 134.) But the former statutes prescribed but one mode of committing adultery, which was by the parties living together and cohabiting with each other. Carnal intercourse with each other, however frequent, did not constitute the crime unless the parties in some sort of way lived together. But as the law now is, habitual carnal intercourse, without living together, is adultery. It is plain to our minds, therefore, that in providing the two different modes of committing adultery, it was intended that- the words “living together” should mean what we have above construed them to mean, and that, where the parties did not actually live, that is, dwell, reside together, they would still be guilty of adultery by having habitual carnal intercourse with each other. But, unless' such intercourse was habitual, the parties not living together, adultery would not be committed; while, on the other hand, a single act of carnal intercourse, if the parties at the time lived together, would, under the law now in force, constitute the crime.

Opinion delivered May 18, 1889.

In this case, we do not think the evidence supports the conviction, in that it does not show that the parties lived together within the meaning of that term. If the defendant had been prosecuted for having habitual carnal intercourse with the woman, without living with her, the evidence would sustain a conviction, but he was not prosecuted or convicted for that kind of adultery, and we can not sustain his conviction for committing the crime in one mode, when the evidence shows that he did not commit it in that mode, although he may have committed it in the other mode.

With respect to the rulings and charge of the court we have found no error. Because the conviction is not supported by the evidence, the judgment is reversed and the cause is remanded.

Reversed and remanded.