Shaw v. State

91 S.W. 1087, 49 Tex. Crim. 379, 1906 Tex. Crim. App. LEXIS 98

Opinion

DAVIDS OH, Presiding Judge.

This conviction was for adultery; and is a companion case to that of Coons v. State, decided at the present term. The charge is that appellant and Coons were committing adultery “by living together.” A special charge was requested to the effect that in order to constitute this offense as charged, “the parties must live together as man and wife,” which was refused by the court. It is not necessary that the parties should “live together as man and wife” in order to constitute adultery under this phase of the statute. Bird v. State, 27 Texas Crim. App., 635; Massey v. State, 3 Texas Ct. Rep., 598. It is only necessary that they live together and have intercourse; it need not be such a living together as man and wife. This being a misdemeanor, the court should either give or refuse the charge as asked; and in order to get the question properly before this court, such charge must be asked. It is not error for the trial court to refuse to give an incorrect requested instruction in misdemeanors.

The remaining questions are the same in this as in Coons v. State, recently decided. There being no error in the record, the judgment is affirmed.

Affirmed.