Willson, Judge.
Defendant and one Lydia Huberick were jointly charged by information with living together in adultery, defendant being unmarried, and said Lydia being a married woman. Lydia Huberick severed from her co:defendant upon the trial" and was tried first, the trial resulting in her acquittal. When defendant’s case was subsequently called for trial he filed a special plea of former acquittal, in substance setting forth that the information charged a joint offense against Lydia and himself; that they were charged with adultery with each other; [384]*384that a severance was granted; that Lydia had been tried and acquitted for said offense; and that her acquittal in law operated as an acquittal also of himself of the said charge. On motion of the county attorney, this plea was stricken out, and this action of the court is assigned as error.
In North Carolina it has been held that “after the acquittal of one of the defendants (in a joint charge of adultery), there could be no judgment against the other. The crime charged on these persons could not be committed but by both of them; and upon a verdict that one of them was not guilty, it appears conclusively that the other could not be. It is exactly like the case of riots, conspiracies, and principal and accessory which we find in the books. The farthest the courts have gone is to allow one of the parties to be tried by himself and convicted, and then judgment is given against that party, because as to him the guilt of the other party is found, as well as his own. But when the one has been previously tried and acquitted, or when both are tried together and the verdict is for one, the other cannot be found guilty, for he cannot be guilty, since a joint act is indispensable to the crime in either, and the record affirms that there was no such joint act.” (State v. Mainor and Wilkes, 6 Iredell, N. C., 340; State v. Parham, 5 Jones, N. C., 416.)
We cannot give our assent to the doctrine of the above cited cases, nor to the reasoning upon which the same are founded. We think the reasoning of these decisions is based upon false premises and. is fallacious. While it is true that, to constitute adultery, there must be a joint physical act, it is certainly not true that there must be a joint criminal intent. The bodies must concur in the act, but the minds may not. While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty, the other innocent, and yet the joint physical act necessary to constitute adultery may be complete. Thus, if - one of the parties was, at the time of committing the physical act, insane, certainly such party has committed no crime; but it certainly cannot be contended that the other party, who was sane, has committed no crime. So, if one of the parties was mistaken as to a matter of fact, after exercising due care to ascertain the truth in relation to such fact, which fact, had it been true, would have rendered the alleged criminal act legal and innocent, the party so acting upder such mistake of [385]*385fact would be innocent of crime. (Penal Code, Art. 15; Watson v. The State, 13 Texas Ct. App., 76.) But suppose the Other party was not mistaken as to such fact, but, on the contrary, well knew the true fact which rendered the connection illicit, would this party be regarded as guilty of no offense because the mistaken party was innocent?
If the North Carolina rule is correct, it must apply also to fornication, bigamy and incest. Now, suppose a father and his daughter are indicted for incestuous intercourse with each other. Upon trial of the daughter it is conclusively proved that at the time of committing the physical act she was an idiot, or that she was wholly ignorant of the relationship existing between herself and her father, without any fault of hers; of course in either of these cases she must be acquitted. Would it not be monstrous to hold that because of her innocence—her acquittal —the beastly father must go unpunished for his unnatural crime? Such cannot be the law, and such, we believe, is not the law as declared by the weight of authority.
In Missouri, it has been held, in a case of incest where one party had knowledge of the relationship and the other was ignorant of it, that the former may be convicted and the latter acquitted. (State v. Ellis, 74 Mo., 385.)
In Tennessee, a question similar to the one at bar was decided adversely to the doctrine enunciated in the North Carolina cases referred to. As the opinion is very short and pointed, we will quote it at length. It is as follows: “Defendant, with a woman named Green, were jointly indicted for open and notorious lewdness. The parties severed for trial, and the woman was acquitted. A plea was filed in bar to the further prosecution on the part of defendant on the ground that the acquittal of the woman operated as equivalent to an acquittal of the man, as the offense could only be committed by two persons. The plea was demurred to, but the demurrer was overruled. The attorney general declining to take issue on the plea, the defendant was discharged and the State appealed. We think the court erred in refusing to sustain the demurrer. The State might fail to be able to make proof of the offense in the trial of one party from many causes, yet might be able to make proof on the trial of the other. We so held at Nashville some time since, and approve the holding. The acquittal of one could not show the other not guilty.” (State v. Caldwell, 8 Baxter, Tenn., 576.)
Mr. Wharton says: “The weight of authority is that the two [386]*386participants in adultery may be joined in the indictment, or may be tried singly. And one may be convicted and punished without any conviction of the other.” (2 Whart. Cr. Law, sec. 1730.) Again, this same author says: “ In other joint offenses it is necessary to prove the concurrence of the participants. This, however, is not necessarily the case in adultery, of which a person may be guilty who commits the offense by force,” (Ibid., sec. 1724. See also State v. Saunders, 30 Iowa, 582.)
Mr. Bishop says: “As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery, and it is believed in fornication and incest, where the crime consists of one’s unlawful carnal knowledge of another, it is immaterial whether the others participated under circumstances to incur guilt or not—just as sodomy may be committed with a responsible human being, or an irresponsible one, or a beast. Therefore, the same act of penetrating a woman, who, for example, is too drunk to give consent, may be prosecuted either as a rape, or as adultery, at the election of the prosecuting power. There are cases which deny this, and hold that adultery, fornication and incest can be committed only with consenting persons, and what is rape cannot be one of the others. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes. Certainly in principle they can have no other just foundation.” (Bish. Stat. Crimes, sec. 660.)
But, independently of other authorities, we think the provisions of our Code of Criminal Procedure are decisive of this question.
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Willson, Judge.
Defendant and one Lydia Huberick were jointly charged by information with living together in adultery, defendant being unmarried, and said Lydia being a married woman. Lydia Huberick severed from her co:defendant upon the trial" and was tried first, the trial resulting in her acquittal. When defendant’s case was subsequently called for trial he filed a special plea of former acquittal, in substance setting forth that the information charged a joint offense against Lydia and himself; that they were charged with adultery with each other; [384]*384that a severance was granted; that Lydia had been tried and acquitted for said offense; and that her acquittal in law operated as an acquittal also of himself of the said charge. On motion of the county attorney, this plea was stricken out, and this action of the court is assigned as error.
In North Carolina it has been held that “after the acquittal of one of the defendants (in a joint charge of adultery), there could be no judgment against the other. The crime charged on these persons could not be committed but by both of them; and upon a verdict that one of them was not guilty, it appears conclusively that the other could not be. It is exactly like the case of riots, conspiracies, and principal and accessory which we find in the books. The farthest the courts have gone is to allow one of the parties to be tried by himself and convicted, and then judgment is given against that party, because as to him the guilt of the other party is found, as well as his own. But when the one has been previously tried and acquitted, or when both are tried together and the verdict is for one, the other cannot be found guilty, for he cannot be guilty, since a joint act is indispensable to the crime in either, and the record affirms that there was no such joint act.” (State v. Mainor and Wilkes, 6 Iredell, N. C., 340; State v. Parham, 5 Jones, N. C., 416.)
We cannot give our assent to the doctrine of the above cited cases, nor to the reasoning upon which the same are founded. We think the reasoning of these decisions is based upon false premises and. is fallacious. While it is true that, to constitute adultery, there must be a joint physical act, it is certainly not true that there must be a joint criminal intent. The bodies must concur in the act, but the minds may not. While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty, the other innocent, and yet the joint physical act necessary to constitute adultery may be complete. Thus, if - one of the parties was, at the time of committing the physical act, insane, certainly such party has committed no crime; but it certainly cannot be contended that the other party, who was sane, has committed no crime. So, if one of the parties was mistaken as to a matter of fact, after exercising due care to ascertain the truth in relation to such fact, which fact, had it been true, would have rendered the alleged criminal act legal and innocent, the party so acting upder such mistake of [385]*385fact would be innocent of crime. (Penal Code, Art. 15; Watson v. The State, 13 Texas Ct. App., 76.) But suppose the Other party was not mistaken as to such fact, but, on the contrary, well knew the true fact which rendered the connection illicit, would this party be regarded as guilty of no offense because the mistaken party was innocent?
If the North Carolina rule is correct, it must apply also to fornication, bigamy and incest. Now, suppose a father and his daughter are indicted for incestuous intercourse with each other. Upon trial of the daughter it is conclusively proved that at the time of committing the physical act she was an idiot, or that she was wholly ignorant of the relationship existing between herself and her father, without any fault of hers; of course in either of these cases she must be acquitted. Would it not be monstrous to hold that because of her innocence—her acquittal —the beastly father must go unpunished for his unnatural crime? Such cannot be the law, and such, we believe, is not the law as declared by the weight of authority.
In Missouri, it has been held, in a case of incest where one party had knowledge of the relationship and the other was ignorant of it, that the former may be convicted and the latter acquitted. (State v. Ellis, 74 Mo., 385.)
In Tennessee, a question similar to the one at bar was decided adversely to the doctrine enunciated in the North Carolina cases referred to. As the opinion is very short and pointed, we will quote it at length. It is as follows: “Defendant, with a woman named Green, were jointly indicted for open and notorious lewdness. The parties severed for trial, and the woman was acquitted. A plea was filed in bar to the further prosecution on the part of defendant on the ground that the acquittal of the woman operated as equivalent to an acquittal of the man, as the offense could only be committed by two persons. The plea was demurred to, but the demurrer was overruled. The attorney general declining to take issue on the plea, the defendant was discharged and the State appealed. We think the court erred in refusing to sustain the demurrer. The State might fail to be able to make proof of the offense in the trial of one party from many causes, yet might be able to make proof on the trial of the other. We so held at Nashville some time since, and approve the holding. The acquittal of one could not show the other not guilty.” (State v. Caldwell, 8 Baxter, Tenn., 576.)
Mr. Wharton says: “The weight of authority is that the two [386]*386participants in adultery may be joined in the indictment, or may be tried singly. And one may be convicted and punished without any conviction of the other.” (2 Whart. Cr. Law, sec. 1730.) Again, this same author says: “ In other joint offenses it is necessary to prove the concurrence of the participants. This, however, is not necessarily the case in adultery, of which a person may be guilty who commits the offense by force,” (Ibid., sec. 1724. See also State v. Saunders, 30 Iowa, 582.)
Mr. Bishop says: “As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery, and it is believed in fornication and incest, where the crime consists of one’s unlawful carnal knowledge of another, it is immaterial whether the others participated under circumstances to incur guilt or not—just as sodomy may be committed with a responsible human being, or an irresponsible one, or a beast. Therefore, the same act of penetrating a woman, who, for example, is too drunk to give consent, may be prosecuted either as a rape, or as adultery, at the election of the prosecuting power. There are cases which deny this, and hold that adultery, fornication and incest can be committed only with consenting persons, and what is rape cannot be one of the others. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes. Certainly in principle they can have no other just foundation.” (Bish. Stat. Crimes, sec. 660.)
But, independently of other authorities, we think the provisions of our Code of Criminal Procedure are decisive of this question. Article 525 provides that the only special pleas allowed a defendant are, first, a plea of former conviction, and second, “ that he has been before acquitted by a jury, of the accusation against him, in a court of competent jurisdiction, whether the acquittal was regular or irregular.” How, how can it be said that this defendant has been acquitted upon an accusation upon which he has never been tried? We cannot perceive the applicability of a plea of former acquittal in such a case.
Again: Article 717 provides, “Where several defendants are tried together, the jury may convict such of the defendants as they deem guilty, and acquit others.” Ho exception is made to the operation of this provision in the case of a trial for adultery, or in any other case. Suppose the defendants in this case, being jointly indicted, had been jointly tried, and one of them had been acquitted, and the other convicted, would not such a verdict have been expressly authorized by the last quoted article of [387]*387the Code? We think so, and, being so warranted, the court could not have declined to pronounce the judgment of conviction.
Opinion delivered February 6, 1884.
We therefore hold that the court did not err in sustaining the motion of the county attorney to strike out the special plea of former acquittal filed "by the defendant. The acquittal of his co-defendant could in no manner affect the question of his guilt or innocence, and the case must be considered without reference to such former acquittal of his co-defendant.
2. Upon the trial of the case the court, over the objections of the defendant, permitted Paul Huberick, the husband of the said Lydia Huberick, to testify in the case. This was not error. Lydia Huberick, the wife, was not on trial, and it was therefore not the case of the husband testifying against the wife. In the case of Morrill v. The State, 5 Texas Court of Appeals, 447, this precise question arose, and it was there determined that the husband was a competent witness against the wife’s paramour. This does not conflict with the case óf Compton v. The State, 13 Texas Court of Appeals, 271, where it was held, in a prosecution against the defendant for incest, that his wife was incompetent to testify against him. If the wife had been on trial, instead of her paramour, the testimony of the husband would have been incompetent.
3. In his charge to the jury, the learned judge omitted to instruct as to the presumption of innocence and as to reasonable doubt. A special instruction supplying this omission was requested by defendant, and was refused. This was error. (Hutto v. The State, 7 Texas Ct. App., 44.)
4. Among other things, the court, at the request of the county attorney, charged the jury that “circumstantial evidence is <">ften as strong and as conclusive upon the understanding as direct and positive evidence.” Such a charge was, in Harrison v. The State, 9 Texas Court of Appeals, 407, held to be a charge directly upon the weight of evidence, and therefore erroneous.
Other errors are complained of which we do not discuss, as they are not likely to occur on another trial, and because we are of the opinion that none of them are tenable.
Because of the errors we have designated, the judgment is reversed and the cause is remanded.
Reversed and remanded.