39 S.W. 367 | Tex. Crim. App. | 1897
Appellant was charged with adultery, and convicted of fornication. Counsel for appellant contends that a conviction for fornication cannot be had under an indictment for adultery, and especially under this indictment. It is well settled in criminal procedure at common law, in other States and in this State, that under an indictment for adultery, with the proper allegations, a conviction can be had, under proper evidence, for fornication. The question is not whether one offense includes another. It is a question of allegation. The legislature cannot, by enacting that a certain offense includes another offense, relieve the State of the necessity of inserting in the indictment every allegation necessary to make a good indictment for the offense of which the accused has been convicted. In other words, all of the elements of the offense must be charged, to support the conviction. Tested by these well-settled rules, after eliminating the allegation in this indictment, to-wit: "Ben Tucker being then and there lawfully married to another person then living," does the remainder contain all of the necessary elements of fornication? Without this allegation, the charging part of the indictment would read as follows: "That Melissa Cosgrove did unlawfully live together and have carnal intercourse with Ben Tucker, a man; and the grand jurors aforesaid, on their oaths aforesaid, do further say and present in said court that in Ellis County, on January 1, 1895, Melissa Cosgrove, a woman, did unlawfully have habitual carnal intercourse with Ben Tacker, a man, against the peace and dignity of the State." "Fornication" is defined as follows: "Fornication is the living together and carnal intercourse with each other, or habitual intercourse with each other without living together, of a man and woman, both being unmarried." An indictment for this offense, omitting to allege "both being unmarried," would be fatally defective. Why? Because the parties may have been man and wife, but if they were both unmarried they certainly could not be. The allegation in this indictment that Ben Tucker had a living wife sufficiently *257 negatives the fact that he was the husband of the appellant, but, being untrue, it leaves the indictment without this fact being denied anywhere therein. The judgment is reversed, and the cause ordered dismissed.
Reversed and Ordered Dismissed.
