Hildreth v. State , 19 Tex. Ct. App. 195 ( 1885 )

Willsost, Judge.

I. This conviction is based upon an information presented in the district court of Titus county, on November 23, 1882, charging the defendants with the offense of adultery, which offense is a misdemeanor. At the date of the presentment of the information, and until April 13, 1883, the district court of Titus county had jurisdiction of all misdemeanor cases of which, under the general law, county courts had jurisdiction. (Gen’l Laws 16th Leg., p. 68.) By an act of the Legislature adopted April 13, 1883, its jurisdiction in such misdemeanor cases was transferred to and vested in the county court of Titus county. (Gen’l Laws 18th Leg., p. 91.) After this latter act went into operation this cause was transferred, by order of the district court, to the county court, and in the last named court, at the April term, 1885, thereof, the conviction was had from which this appeal is prosecuted.

As the district court had jurisdiction of the offense charged at the time the prosecution was instituted, it was proper to present the information in that court, it being an offense which could be prosecuted by information; and when jurisdiction over such offenses was transferred by law from the district to the county court, it was proper to transfer the case to the latter court, which then had exclusive original jurisdiction to hear and determine it. We see no error either in the institution of the prosecution or in the transfer of it.

II. It is not essential in an indictment for adultery to allege the sex of the offenders;— that one is a man and the other a woman; though such allegation is usually made, and is more strictly in accordance with the statute defining the offense. (Holland v. The State, 14 Texas Ct. App., 182; Willson’s Cr. Forms, p. 107, Form 213.) ¡Neither is it essential to allege the name of the person to whom one of the offenders is married. It is sufficient to allege that one of them was lawfully married to some other person than the person with whom the adultery is charged. (Collum v. The State, 10 Texas Ct. App., 708.) In this case it is alleged that the defendant Mary was lawfully married to John Curry, and that said Curry was living at the time of her adultery. In all respects the information is sufficient, and there was no error in overruling defendants’ exceptions to it.

III. We do not think the court erred in refusing the defendants’ application for a continuance. The main fact expected to be proved by Jones, the absent witness, was that the defendants had information, before and at the time they commenced living together, that John Curry, the husband of the defendant Mary, was dead, and that they believed such information to be true. This evidence, if it had been adduced on the trial, could not have changed the result, because it was proved by the State, and was not controverted by the defendants, that they continued to live together after they Ttnew that John Curry was alive. Whatever may have been their information and belief as to John Curry’s death, at the time they commenced living together, cannot affect their conduct of living together after they ascertained to a certainty, which they did two weeks before this prosecution was instituted, that John Gprry was alive. Their living together after receiving positive knowledge of this fact rendered them guilty of the offense, however innocent, from mistake of such fact, their previous conduct may have been. In view of the other evidence in the case, we are of the opinion thai the facts expected to be proved by the absent witness cannot be considered material.

IV. It is contended by appellants’ counsel that, as the evidence shows that defendants married each other, and lived together as husband and wife, if guilty of any offense, they are guilty of bigamy, and cannot be convicted under an indictment charging adultery. In Swancoat v. The State, 4 Texas Ct. App., 105, this court held to the contrary, and sustained a conviction for adultery in a case where the evidence established a marriage of the defendants.

This ruling in the Swancoat case we adhere to as correct in principle and supported by ample authority. (Bish. on Stat. Cr.,§ 662.) hTor is it in conflict, as we conceive, with the decisions of this court cited in the brief of counsel for appellants. We can very well conceive, in this case, how the defendants might not, because of a mistake of fact, be guilty of bigamy, by intermarrying with each other, and yet be guilty of adultery. The fact that they were married to each other would make their cohabitation none the less adulterous, although such marriage may have been innocently entered into, if, after ascertaining that such marriage was unlawful and void, they continued to cohabit together.

V. It is objected that the court did not certify to its charge, and did not certify to his refusal of the special charges requested by defendants, as required by the statute. (Code Crina. Proa, arts. 679, 680.) We find upon inspection of the charge given to the jury, as copied into the record, that it was signed by the judge. This was a compliance with the statute. (Henderson v. The State, 5 Texas Ct. App., 134; Roberts v. The State, id., 141; Jeffries v. The State, 9 Texas Ct. App., 598.) It does not appear that the special charge requested by the defendants was certified by the judge. It is indorsed refused, but such indorsement is not signed by the judge. There is no bill of exception in the record, however, to this omission of the court, and in this case the error is not of a character Avhich should cause a reversal of the judgment. In so far as the special charge was correct and applicable to the facts, it was embraced in the charge given to the jury.

VI. It is objected to the charge of the court that it presents both phases of the offense of adultery, when the information charges but one. It is true that, in defining adultery in the charge, the court copies the statutory definition; but when the court in its charge applies the law to the facts, it restricts the jury to the particular adultery charged in the information, viz., the living together and having carnal intercourse with each other, etc. Considering the charge as a whole, we find no error in it of which the defendants can be heard to complain.

There are other supposed errors complained of by defendants, to all of which we have given attention, but we consider it unnecessary to discuss them, as they are of minor importance. We have discovered no reversible error in the record, and the judgment is affirmed.

Affirmed.

[Opinion delivered October 31, 1885.]