Swancoat v. State , 4 Tex. Ct. App. 105 ( 1878 )

Winkler, J.

Counsel for appellant, in an able brief, have presented the assignment of errors in the form of two interrogative propositions, as follows :

“ 1. Is the information, tested by itself, sufficient to uphold the judgment ?

“2. If it is, does not the previous indictment and acquittal in the District Court operate as a bar to the present information ? ’ ’

As to the first question, it is argued that the information is not deemed sufficient, because it does not set out the offense as defined by statute; nor does it sufficiently describe the living together of the parties in the unlawful state contemplated by the statute.

The sufficiency of the information must be tested by the provisions of the Penal Code and Code of Criminal Procedure on the subject. In making this investigation we can derive but little aid from the adjudications of our own courts on the precise point of inquiry. Not only so, but the decisions of other jurisdictions afford but an uncertain guide, for the reason that, not having access to many of the statutes which have been construed, in order that we may compare them with our own, we are unable to see the precise applicability of their rulings to the construction of our own statutes. Nor yet can much authoritative information be derived from the common-law authorities, from the fact that adultery, though prosecuted in common-law courts, is not strictly a common-law offense.

Mr. Archbold says: “Our statutes making adultery punishable in common-law courts do not give a definition of the offense. Such,” he says, “is frequently the case in our criminal codes as to the higher crimes ; they are not defined in our statute-books, but are assumed to be well known as offenses at common law, and, under the general term denoting the offense, it is declared by law to be a crime, and the mode of trial and measure of punishment are alone prescribed by statute.” 3 Archb. Cr. Pr. & Pl., title “ Adultery,” sec. 615.

Such was doubtless the idea of the author of the Texas Code in regard to the crime of adultery, and hence the object seems rather to have been to prescribe the mode of trial and the measure of punishment than to define the precise legal meaning of the word; to declare who are guilty of the offense and in what it consists, how the offender is to be tried and the measure of the punishment which may legally be imposed for the offense; declaring, as has been done, what acts, under what circumstances and what relationships, parties may be punished for this offense, doubtless supposing that the offense was too well understood to require a more particular explanation of its meaning.

The statute provides, then, that “ every man and woman who shall live together in adultery * * * shall be punished by fine not less than one hundred nor more than one thousand dollars ;” and, also, that “ it is sufficient to prove in trials for living in adultery that the parties cohabited together, and that one of them is married to some other person,” and prescribing how proof of such marriage may be made. And “ where two persons live together-in a state of cohabitation, one of them being married [to some other person, evidently], they are both guilty of adultery, according to the sense in which the term is here used, though only one of them be married.” And it is also provided that “ a single act of adultery is not sufficient to bring the offense within the meaning of this chapter (ch. 2, title 12), unless proof be made that the parties live together.” Penal Code, arts. 392-395 (Pasc. Dig., arts. 2022-2025).

We hold, then, that a man and woman who shall voluntarily live together, or cohabit together, they not being lawfully married to each other, but one of them being, at the time of living or cohabiting together, married to some other person, would be guilty of the crime of adultery within the meaning of the statute. “ The elements of this crime are: (1) there shall be an unlawful connection ; (2) that the guilty party shall, at the time, be married ; ( 3) that he or she willingly committed the offense.” 1 Bouv. L. Dic. 76. And we are further of the opinion that, under the statute as above referred to, there must be some sort of living together, or cohabiting, to constitute the offense. This is the legitimate interpretation of the statute, taking into consideration its several modes of expression. For example: ‘6 Every man and woman who shall live together in adultery ’’ (art. 392) ; “it shall be sufficient to prove in trials for living in adultery that the parties cohabit together ” (art. 293) ; “when two persons live together” (art. 394); and “a single act of adultery is not sufficient to bring the offense within the meaning of this chapter, unless proof be made that the parties live together ” (art. 395, above-set out).

In fact, there is no expression or intimation in the Code that a single act, or even an occasional act, of adulterous intercourse would constitute the offense of adultery, unless in connection with the further fact that the parties live or ■cohabit together.

On the subject under consideration Mr. Bishop says: “To constitute ‘living together ’ in adultery, * * * something more than an occasional private interview is required ; there must be a notoriety to the conduct of the parties, or they must live or lodge, at times at least, under the same roof, or something must be done of the sort.” 2 Bishop’s Cr. Law, sec. 28.

Without holding that this learned author is entirely correct as to the extent to which he goes, for the reason that our statute does not make notoriety any part of this offense, we do think that whilst one such interview would not, that repeated adulterous meetings at any given place, or even different places — as, for instance, at houses of assignation — would perhaps be such a cohabiting as would constitute the offense of adultery. So much as to the offense, mid what it would be sufficient to charge in an information.

With reference to the. requirements of the statute as to what informations generally mu§t contain, and the manner of commencing prosecutions by information in the County Courts, see Code Cr. Proc., art. 403 (Pasc. Dig., art. 2870), and the County Court Act of 1876 (Gen. Laws 1876, p. 17, sec. 8).

All that is required in stating the offense is set out in the seventh subdivision of article 403, as follows : “ That the offense be set forth in plain and intelligible words ”—that is, that an information for adultery must set forth the offense of adultery “in plain and intelligible words.” To describe a statutory offense in the language of the statute, or substantially so, has generally been held sufficient.

The rules laid down in article 398 and certain other articles of the Code, with respect to indictments, are made applicable to informations. Article 398 is as follows:

“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

This has been so held in numerous cases decided by the Supreme Court and this court. The Code does not seem to require this offense to be charged with a continuando. We are of opinion that the information does sufficiently set out the offense as defined by the statute, and does sufficiently describe the living together of the parties in the unlawful state contemplated by the statute.

The criminal pleader, and, in fact,"any pleader, would do well to consult recognized precedents; but whilst this is undoubtedly true, yet, in testing the sufficiency of a criminal pleading, our own laws must control when their behests are clear and explicit.

The information charges a living together at a stated time. In informations, all the Code requires as to time is that the time of 'the commission of the offense be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation. Code Cr. Proc., art. 403, subdiv. 6 (Pasc. Dig., art. 2870). All the requirements of the law have been met in the information.

With reference to the second question : Does not the previous indictment and acquittal of the appellant in the District-Court present a bar to the present prosecution, based on this information? The question would be more satisfactorily stated in this wise : Can an indictment charging the accused with bigamy, alleged to have been committed on April 17, 1870, to which the statute of limitations had been successfully pleaded in the way of a motion to quash the indictment, and the motion sustained, be successfully pleaded in bar of a prosecution for living in adultery with the same person with whom the bigamous connection was charged in the indictment for that offense, the second prosecution charging the offense to have been committed on August 1, 1876?

We are of opinion this question should have been .specially pleaded, and the matter submitted to the jury, in connection with the plea of not guilty. Former conviction and former acquittal are two of the three special pleas which one who may be accused of crime is permitted to make. The plea of former acquittal must show ‘6 that he has been before acquitted by a jury, of the accusation against him, in a court of competent jurisdiction.” Code Cr. Proc., art. 484 (Pasc. Dig., art. 2951).

Such special pleas as set forth matter of fact proper to be tried by a jury shall be submitted and tried with the plea of not guilty, and if the plea be not excepted to, it shall be considered that issue has been taken upon it. Code Cr. Proc., arts. 503, 510 (Pasc. Dig., arts. 2972, 2979). “ The jury is the judge of the facts in every criminal case.” Code Cr. Proc., art. 593 (Pasc. Dig., art. 3058). And whilst the verdict in a criminal action must be general, yet, “when there are special pleas upon which the jury are to find, they must say in their verdict that the matters alleged in such special pleas are either true or untrue. Code Cr. Proc., art. 626; (Pasc. Dig., art. 3091).

The proofs with regard to the former acquittal were admitted over objections by the State, but no bill of exceptions was taken to the ruling. The requirements of the Code, plain as they are, seem to have been entirely overlooked or disregarded with regard to this plea of former acquittal. The plea was not made in the manner pointed out by the Code ; but if it had been properly made, it was not sufficient, and was liable to exception under article 509 of the Code (Pasc. Dig., art. 2978), because it is not pretended that the acquittal was not by the verdict of a jury. As to what the plea of not guilty puts in issue, see article 497 of the Code (Pasc. Dig., art. 2965); and by the same article the special pleas mentioned in article 484, which include the plea of former acquittal and the facts in support thereof, are not allowed to be proved under the plea of not guilty.

But, aside from all this, the plea, if it had been properly made and proved, would not have constituted a bar to the present prosecution, for the reason that the offenses are not the same, nor maintainable upon the same testimony. It is not contended that the charges must be identical in every respect; for, when the evidence necessary to support a second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good. Thomas v. The State, 40 Texas, 36; Lewis v. The State, 1 Texas Ct. App. 323. And for an extended discussion of the subject, and also that of former jeopardy, see Vestal v. The State, 3 Texas Ct. App. 648.

As to the evidence to support the charge of adultery, see 2 Greenl. on Ev., sec. 40 and following. The proof in this case, agreeably to the rules there laid down, was full and complete.

The appellant has been tried upon a sufficient information for an offense against the law, in a court of competent jurisdiction, and upon a sufficiency of legal testimony. No exception was taken to any action of the court which can avail the accused; and from the whole case as shown by the record, in the light of able arguments, we find no legal cause to disturb the conviction.

The judgment is affirmed.

Affirmed.