Randle v. State

Citations

• 12 Tex. Ct. App. 250

Syllabus

<p>1. Adultery—Charge oe the Court.—Under the Revised Penal Code, adultery may be committed either by cohabitation and carnal intercourse or by habitual carnal intercourse without cohabitation; but when only one of these modes is charged, it is radical error to instruct for conviction if the evidence establishes the other mode.</p> <p>3. Variance.—The rule that the material allegations and the proof must meet and correspond obtains in criminal as well as in civil causes.</p> <p>8. Evidence—Practice.—• When the State has charged the commission of the offense in one of several modes in which it could have been committed, the inculpatory evidence and the instructions to the jury should be restricted to the particular mode charged.</p> <p>4. Same—■ Practice in this Court.—• If the commission of the offense be charged in a particular manner, and a conviction be had on evidence and instructions predicated on its commission either in the manner charged or in a different manner, the conviction will be set aside on appeal because of the uncertainty whether the verdict was upon the accusation preferred against the appellant.</p>