Boswell v. State

The State has filed a motion for rehearing. The original opinion reversing the judgment did not consider the first count in the indictment wherein the parties were charged with adultery by reason of their living together, — holding that the evidence did not raise that question. The woman alleged to be the paramour, was a servant of appellant and family as cook and sort of a general servant. Appellant's wife was sick at the time. It is contended that under the first count the evidence justified a conviction, because the paramour was a servant in and about the premises for several months, and that this constituted sufficiently what the statute terms "living together." We cannot agree to this under the facts. The statute of adultery was enacted for a specific purpose. It was never intended by this expression in the statute to convey the idea, that a married man with a family was "living together" with a servant in violation of the adultery statute merely because the servant might occupy a room in the house of the master. To give the statute such construction would be to hold that where the landlord or family slept under the same roof with the servant, this would be a "living together" with that servant. In a sense people who live in the same house, though occupying different rooms might be said to be living together. The house would be a common domicil. In the sense sought to be impressed upon this statute by the motion for rehearing, every man who owns a house and has a female servant, who happens to occupy a room, would be "living together" with that servant. In Lenert's case, 2 Texas Ct. Rep., 801, we held the evidence was sufficient to show a living together, which justified the verdict, in view of all the facts adduced in that case. The woman was the housekeeper of a Catholic priest. Under the laws of that Church he could not be a married man. This was her home, and she occupied it as housekeeper for the priest. We held under the facts of that case, there was sufficient evidence of a violation of the statute. In Bradshaw's case, 2 Texas Ct. Rep., 232, it was stated, "While the proof on the part of the State showed the parties lived in the same house, it is also shown that they lived and inhabited separate and distinct rooms in said house. There is no testimony suggesting that defendant supported, maintained or aided in supporting his paramour." In the case here, the only evidence upon which the State could hope for a conviction was the fact that the paramour was a cook and sort of general servant. In a certain sense it may be said he was supporting her; that is, he was paying wages for her services; and it may be inferred that she was taking her meals at appellant's residence. There is no pretension that they occupied the same room. All the facts relied upon, as above stated, are (1) that she was a cook; (2) sort of a general servant and (3) that she slept in the house but in a different room. We do not believe this statute means to include a married man with a family as living together with a cook who is employed to wait upon the family. There must be something more than that under the statute. Under the construction sought to be placed upon it by this motion, every married man in the country who happened to have a female cook sleeping in the house would be "living together" with her, and if one act of intercourse should occur, then they would be "living together" in adultery. We do not believe this contention is right under the facts in this record. The original opinion is correct. The motion for rehearing is overruled.

Overruled.

Henderson, Judge, absent.