85 S.W. 4 | Tex. Crim. App. | 1905
Appellant was convicted of adultery, and his punishment assessed at a fine of $100; hence this appeal.
Appellant excepted to the evidence of conduct between appellant and his alleged paramour, occurring some four or five years before the commission of the offense charged against appellant, claiming that the same was too remote and constituted no part of the offense; and in support of this contention, refers us to Cyc. L. P., p. 962, and notes citing cases; and Peo v. Henderson,
Appellant made a motion for new trial based on newly discovered evidence, which consisted of the testimony of Mrs. Anna Jones, the daughter-in-law of appellant's alleged paramour, and of Mrs. Sallie Jones, the alleged paramour. We think the showing of diligence as to Mrs. Anna Jones was sufficient. It occurs to us that her testimony was upon a material point in the case. The State developed on the *573 trial four acts of carnal intercourse in March at the house 01 Mrs. Sallie Jones, and the newly discovered witness, Mrs. Anna Jones, would prove that she was there at the time and slept in the same bed with Mrs. Sallie Jones. This testimony would go to controvert the State's case. As to Mrs. Sallie Jones, the application shows that she was indicted for the same offense; that appellant was tried and convicted before her case was brought to trial; that afterwards, at the same term, the case against Mrs. Sallie Jones was tried and she was acquitted. The application shows that she would deny any acts of carnal intercourse between her and appellant. The rule as to this character of testimony authorizes a new trial on this ground. Chumley v. State, 32 Tex.Crim. Rep.; Gibbs v. State, 30 Texas Crim. App., 581; Helm v. State, 20 Texas Crim. App., 41; Ellis v. State, 10 Texas Crim. App., 540; Howell v. State, 10 Texas Crim. App., 293; Rucker v. State, 7 Texas Crim. App., 549; Brown v. State, 6 Texas Crim. App., 286; Williams v. State, 4 Texas Crim. App., 5; Huedner v. State, 3 Texas Crim. App., 458; Rich v. State, 1 Texas Crim. App., 206. The judgment is reversed and the cause remanded.
Reversed and remanded.
Davidson, Presiding Judge, absent.