Boswell v. State

85 S.W. 1076, 48 Tex. Crim. 47, 1905 Tex. Crim. App. LEXIS 89

Opinions

The indictment contains two counts, charging appellant with living in adultery with Amanda Lenox. The first count charges they lived together and had carnal intercourse; and the second, the offense was committed by habitual carnal intercourse without living together. It is conceded by the State that conviction could not be had under the first count under the facts. Under the second count Amanda Lenox testified for the State that during the summer and fall of 1903, she had intercourse with appellant six times; that she was working in the family of appellant, whose wife was sick, and she was working in the capacity of cook and general servant. Four of these acts occurred in the house. She occupied this relation about seven months. This evidence does not prove the second count; that is, that they had habitual carnal intercourse with each other. Collins v. State, 10 Texas Ct. Rep., 1020. For want of sufficient evidence to sustain the conviction, the judgment is reversed and the cause remanded.

Reversed and remanded.

Henderson, Judge, absent.