
    CHAPMAN et al. v. STATE.
    (No. 8863.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.)
    I. Lewdness &wkey;>l — Refusal of charge that jury to convict must find that defendants lived together, and while, living together had carnal intercourse with each other, held error.
    In prosecution for adultery;- based on count charging defendants with living together and with carnal intercourse, where evidence was circumstantial, refusal of charge that jury must find defendants lived together at time alleged, and had carnal intercourse with each other while s-o living together, held error.
    2. Lewdness <&wkey;>l — Before conviction of defendants of living together and having carnal intercourse can be sustained, act of intercourse while living together must be shown.
    Before conviction can be sustained on charge of defendants living together and having carnal intercourse, act of intercourse must be shown to have taken place at or during time parties were actually living together, and showing defendants lived together with act of intercourse at some other time is insufficient.
    Commissioners’ Decision.
    Appeal from Stephens County Court; E. F. Ritchey, Judge.
    M. E. Chapman and another were convicted of adultery, and they appeal.
    Reversed and remanded.
    L. H. Welch, of Breckenridge, for appellants.
    Sam D. Stinson,' State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is adultery, and the punishment is a fine of $100.

The conviction was based upon a count in the indictment which charged that the appellants lived together and had carnal intercourse with each other. The evidence tending to show guilt was purely circumstantial. In submitting the case to the jury, the court merely gave the statutory definition of adultery in general terms. The appellants objected to the charge of the court, and requested a correct special charge covering this matter. In their special charge the appellants requested the court to submit to the jury the proposition that before a conviction would be justified the jury must find and believe from the evidence that the defendants did, on or about the time alleged in the indictment, live together as that term is defined by statute, and that the jury must further find and believe from the evidence that the defendants not only lived together, but they must further find and believe from the evidence that the defendants had carnal intercourse with each other while so living together. We think this charge pertinently presented the issues involved in this case, and that the trial court was in error in refusing. to give it.

Under the charge as given the jury would have been authorized to convict the appellants upon proof of the mere fact that they lived together, provided the jury should conclude that they had at any time had intercourse with each other, regardless of whether the act of intercourse took place whiLe they were living together or at some other time. This is not the law. Before a conviction can be sustained for adultery under this phase of the statute, the act of intercourse must take place at or during the time the parties are actually living together. It is not sufficient to show that they lived together and that the act of intercourse may have taken place at some time other than the time during which they are actually living together.

Because of the court’s error above discussed, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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