Storey v. State

250 S.W. 427, 94 Tex. Crim. 246, 1923 Tex. Crim. App. LEXIS 108

• Court: Court of Criminal Appeals of Texas
• Decided: April 18, 1923
• Docket: No. 7657.
• Status: Published

Opinion

HAWKINS, Judge.

Upon information charging that appellant in Kaufman County “unlawfully lived together” and had carnal intercourse with one Billy Riggs, he was convicted of fornication and his punishment assessed at a fine of fifty dollars.

On the night of November 1, 1922, appellant went to the hotel of Fred Adams in Forney in company with Billy Riggs whom he introduced as his wife. He reported that their automobile had broken down. He procured a room and the two occupied it that night. Billy Riggs testified that she and appellant left Tyler together and on their way to Dallas; had car trouble and stayed all night in Forney, occupying the same room; that appellant had intercourse with her during the night. Her testimony is that this is the only time they ever stayed in Kaufman county, and that so far as she knew it was the only time appellant had ever been in the .county. There is no evidence from any source indicating that appellant was ever in the county by himself or in company with Billy Riggs other than this time.

The state concedes the evidence is insufficient to support the conviction. It is not necessary to discuss or review the authorities at length. They are to the effect that one act of intercourse does not constitute “living together” in contemplation of our statutes upon adultery and fornication. See Swancoat v. State, 4 Texas Cr. App. 105; Parks v. State, 4 Tex. Cr. App. 134; Thomas v. State, 12 S. W. Rep. 1098; McCabe and Cordway v. State, 34 Tex. Cr. Rep., 418, 30 S. W. Rep., 1063.

Appellant’s conduct was reprehensible, and naturally was resented by Adams and his wife as an imposition upon them, but he was not guilty of fornication under the statute.

The judgment is reversed and the cause remanded.

Reversed and remanded.