Tucker v. State

35 Tex. 113

Opinion

Evans, P. J.

The indictment charges that the appellant, having “a living, lawful wife, from whom he had never been divorced, did cohabit and live in adultery with one Lucy Sanders.”

This indictment lacks one of the essential averments of an indictment for adultery, in this, that it does not aver that Lucy Sanders is not the wife of the appellant.

A leading feature of our law is, that no man shall be convicted of an offense until he shall have been plainly and intelligibly charged with it, “in its entire extent.” (2 Bishop C. P., §527; Paschal’s Dig., Art. 2863.)

To support a conviction for adultery, it must be charged and proved that one of the parties is married to some person other than the particeps criminis. (Paschal’s Dig., Art. 2028; 2 Bishop C. P., § 11.)

The exception to the indictment should have been sustained; the judgment, therefore, is reversed and the cause dismissed.

Reversed and dismissed.