Swancoat v. State

Citations

• 4 Tex. Ct. App. 105

Syllabus

<p>1. Adultery. — To constitute the crime of adultery under the Code of this state, there must he some sort of living together, or cohabitation; adulterous acts of casual recurrence will not suffice. But repeated adulterous interviews at a given place, or even at different appointed places, may, it seems, be such cohabitation as will constitute the offense.</p> <p>2. Same — Informations. — The sufficiency of an information for adultery is not to be tested by precedents or adjudications of other states, but by the requirements of our own laws. It will be held sufficient if, in plain and intelligible words, and with such certainty as to enable the accused to plead the judgment in bar of another prosecution, it charges the offense in substantial conformity with its statutory definition, and alleges its commission at a date anterior, but not so remote as to show that the prosecution is barred by limitation.</p> <p>3. Same — Averment of Time. — The living together, or cohabitation, need not be charged with a continuando, but may be alleged as on a single designated day.</p> <p>4. Former Acquittal.—The defense of former acquittal is not available under the plea of not guilty, but must be pleaded specially, alleging an acquittal by a jury in a court of competent jurisdiction. A judgment quashing a previous indictment because barred by limitation is not plead-able as a former acquittal.</p> <p>5. Same. — Bigamy and adultery are not the same offenses, nor maintainable by the same evidence; and, therefore, a former acquittal of bigamy can constitute no defense against a charge of adultery.</p>