24 Tex. Ct. App. 164 | Tex. App. | 1887
To sustain a conviction for the offense of adultery, it is absolutely essential that the evidence should prove that at the time of the alleged adulterous intercourse, one of the parties thereto was lawfully married to some other person than the one with whom the adultery is charged.
In this case the defendant is the party who, it is alleged, was the married party. The only evidence that he was married is that he, at the time of the alleged adulterous acts, had a living wife, a woman with whom he had lived during the war, but from whom he had separated some time since the war, but at what date is not shown. There is not a particle of evidence that he ever married said woman, nor is there any evidence that they ever'lived together as married persons. The witnesses say she was his wife, but none of them say he was married to her, or that he lived with her as married persons. His marriage with her was not proved by any of the modes prescribed by the statute. (Penal Code, art. 334.)
We do not think that the evidence sufficiently establishes that the defendant was married to another person. The mere opinion of witnesses that a woman was his wife can not be regarded as sufficient or even competent evidence to establish the important fact that he was married to another person. If the defendant and the woman named as his wife were emancipated slaves, they became lawfully married to each other at the date when the Constitution of 1869 took effect, if they were then living together as husband and wife; but, if not so living together at that date, their former status, whatever it might have been, would not make them married persons within the meaning of the law. (Stewart v. The State, 7 Texas Ct. App., 326.) There is nothing in the record before us to show that the parties were emancipated slaves, and were living together as married persons at the date of the adoption of the Constitution of 1869. The facts of the case, therefore, do not bring it within the purview of such a marriage.
Because, in our opinion, the evidence is insufficient to prove that the defendant was lawfully married to some other person ill an his co-defendant, at the time of the alleged adulterous acts, the judgment is reversed and the cause is remanded.
Reversed and remanded.