McCabe v. State , 34 Tex. Crim. 418 ( 1895 )

Appellants were convicted of fornication. The information charges the offense to have been committed by living together, and having carnal intercourse with one another. The parties went on the same train from Karnes City to Kenedy, a distance of a few miles, and there stopped at an hotel for dinner and supper, after which they left in a buggy. This was Tuesday night. They were not seen until Friday morning, when they appeared at the camp of one Burris, a short distance from Kenedy. The girl remained at this camp, where McCabe left her until the following day, when McCabe came for her, and they returned together to Karnes City. She spent that night in his private bedroom. McCabe notified an officer of her presence, and requested that some one be placed there, so that it would be seen that he did not occupy her room that night. It is left in doubt as to whether they occupied the same room, or not, on the night in question. This is the substance of the evidence. This conduct did not constitute "living together," as meant by the statute (Penal Code, article 337). Bird v. The State, 27 Texas Crim. App., 635; Ledbetter v. The State, 21 Texas Crim. App., 344.

The facts are insufficient to support the offense as charged in the information, wherefore the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.