
    CADLE v. STATE.
    (No. 6546.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1921.)
    1. Criminal law c&wkey;878(2) — Verdict sustaina- . ble under either of two counts upheld.
    In a prosecution under an information charging, in two counts, adultery by living together and having carnal intercourse and by habitual intercourse without living together, a verdict of guilty, if it can be sustained under either count, will be upheld.
    2. Adultery <&wkey;l — One act of intercourse, where parties live together, sufficient.
    Where parties charged with adultery live together, one act of intercourse is sufficient to convict.
    
      3. Adultery <&wkey;l’4 — Criminal law &wkey;>409 — Intercourse may be shown circumstantially or by defendant’s extrajudicial admissions, if corroborated.
    That parties charged with adultery had intercourse while living together may be shown by circumstantial evidence, if necessary, or by defendant’s extrajudicial admissions, if corroborated.
    4. Criminal lav; c&wkey;534(2) — Extrajudicial confessions and corroborative evidence held sufficient to convict.
    In a prosecution for adultery while living together, defendant’s extrajudicial confessions and corroborative testimony of other witnesses, including the woman with whom the offense was committed, held sufficient to show he had intercourse with her while she was living at his house.
    5. Criminal law <&wkey;>l090(5) — Refusal to require election between counts not reversible error, in absence of bill of exceptions.
    Where no bill of exceptions was taken to the court’s refusal to require the state to elect between two counts of an information, such refusal is not ground for reversal.
    6. Criminal law <&wkey;829(IO) — No error in refusal of charge covered in charge given.,
    In a prosecution for adultery, where the court told the jury that the woman with whom the offense was committed was an accomplice, whose testimony must be corroborated, it did not err in refusing defendant’s special charge on such point.
    7. Criminal law <&wkey;>l 169(7) — Introduction of judgment not error where party convicted testified she pleaded guilty.
    In a prosecution for adultery, where the woman with whom the offense was committed testified, without objection, that she had pleaded guilty to a charge of vagrancy, the introduction of the judgment finding her guilty thereof was not error.
    8. Sunday <&wkey;30(7) — Judgment rendered on Sunday may be introduced in evidence.
    In a prosecution for adultery, the fact that a judgment finding the woman with whom the offense was committed guilty of vagrancy was rendered on Sunday is no sufficient ground of objection to its admission in evidence.
    9. Criminal law <&wkey;1169(12)— Evidence that defendant was at his residence, where woman also lived, when witness called) at his place of business, held admissible in prosecution for adultery.
    In a prosecution for adultery, testimony that witness was told, when he called at defendant’s place of business, that defendant was at his residence where the woman with whom the offense was committed lived, held not prejudicial error, being legitimate, if it might have led the jury to believe he was with the woman, and harmless otherwise.
    Appeal from Ellis County Court; F. L. Wilson, Judge.
    J. W. Cadle was convicted of adultery, and he appeals.
    Affirmed.
    J. T. Spencer, of Waxahachie, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Ellis County of the offense of adultery, and his punishment fixed at a fine of $200.

There were two counts in the information; adultery being charged in one by means of living together and having carnal intercourse, and in the other by habitual carnal intercourse without living together. The main contention of appellant, which is raised in various ways, is that the evidence does not support the general verdict rendered, nor the judgment of guilty. If said verdict can be sustained under either count, under our practice, it will be upheld by us. That the parties lived together is without controversy. Miss Ohr, who was the woman with whom appellant’s adultery was charged, testified: “I came to Waxahachie some time during the summer of 1920, and lived for a time with J. W. Cadle and family.” Walter Heine testified: “While Freddie Mae Ohr was living at the house of defendant,” etc. Will Carroll testified: “At the time Freddie Mae Ohr was living at his house,” etc. John Hutchinson testified “While Freddie Mae Ohr was living at the home of defendant,” etc. There was no testimony in any wise contradictory of the fact that the young woman lived at the home of appellant. It is well settled that one act of intercourse where the parties live together will meet the requirements of the statute. Swaneoat v. State, 4 Tex. App. 105; Bird v. State, 27 Tex. App. 635, 11 S. W. 641, 11 Am. St. Rep. 214; Bodkins v. State, 75 Tex. Cr. R. 499, 172 S. W. 216.

The issue of the living together of appellant and the young woman being settled against him, there remains but the question of the sufficiency of the testimony to show intercourse between such parties while they lived together. This fact could be shown to the satisfaction of the jury by circumstantial evidence if necessary. It could also be shown by the extrajudicial admissions of appellant, if corroborated by other evidence.

The young woman testified as a witness and gave evidence of her continued intimacy and association with appellant, which seems fully corroborated by the testimony of other people. She testified that he had a number of acts of intercourse with her at various times, none of which she said took place at his home. She testified thq,t while she lived in his house appellant’s wife was confined in a sanitarium for some weeks. She also testified that she had stated to the county attorney of Ellis county, which statement was by said county attorney reduced to writing and signed by ber, that while she lived in the home of appellant he slept with her three or four nights in his house before she let him have intercourse with her at said house. While giving her testimony she enumerated other things which she said were contained in said written statement, such as the fact that she and appellant slept together for several nights at said house, and that appellant paid her board and room rent at other places, and paid for most of her clothes, etc. This testimony of the young woman seems to have been introduced before the jury without objection.

She also testified that some of the things in said witness’ statement were true, but denied that appellant had intercourse with her at his house. Her only excuse for what she says was an incorrect statement on her part on this point, as detailed to the county attorney, was that she was scared. Let us see. The proof being ample that the parties lived together, and her statement that they slept together several nights at his house being unchallenged, and it appearing in the record without controversy that after she left his house she went to a rooming house in Italy, where she admits carnal intercourse with appellant, and that he paid a fine for her for vagrancy, which charge must, in the nature of things, have been predicated upon her bad character or conduct and their continued association and intimacy being testified to by other persons, and it being testified to by three parties, without contradiction, that while the young woman lived in appellant’s home he told them that he had to sleep with her three or four nights before he could “do any good,” or “before he had any luck,” or “before he had any success,” seems ample proof to our minds, to justify the conclusion of the jury that appellant had intercourse with the young woman at his house while she was living there. We recognize the fact that the extrajudicial confession of one accused of crime, to the fact that he committed the act charged, is insufficient of itself to justify a conviction, but same may be corroborated. We think the statements made by appellant to the three witnesses mentioned to the effect that he slept with the young woman three or four nights at his house before he had any luck, or before he could do any good, or before he had any success, admit of but one interpretation, and that is that he slept with her three or four nights before he had carnal intercourse with her. She does not deny, but, on the contrary,seems to admit, that he did sleep with her three of four nights while she lived at his house. She also admitted having stated to the county attorney that on one of said nights he had carnal intercourse with her. We think the evidence sufficiently corroborates the extrajudicial confession of appellant and shows him to he guilty under the first count in the information.

What we have just said disposes of appellant’s contention that the evidence does not support the verdict, and that the -court should have given a peremptory instruction, and that the court should have charged the jury not to consider the first count in the information against defendant. The appellant asked that there be an election between the counts, but seems to have been satisfied with the court’s refusal to require the state to elect, inasmuch as no bill of exceptions was taken to the action of the court in declining to compel the state to make such election.

We think the court’s charge to the jury with regard to the character of intercourse necessary to constitute guilt sufficient.

The trial court told the jury that the witness Freddie Mae Ohr was an accomplice, and that her testimony must be corroborated,, and there was no error in refusing appellant’s special charge on this point.

Appellant has a bill of exceptions to the introduction in evidence of the judgment of the justice court finding Freddie Mae Ohr guilty of vagrancy. The young woman herself had testified without any objection that she pleaded guilty in said court to vagrancy, and, this evidence being before the jury without objection, we would hold that the introduction of the judgment itself could present no error. The fact that the judgment was rendered on Sunday would be no sufficient ground of objection thereto.

Appellant also complains that the state was permitted to prove by the witness Pierce the following: While Freddie Mae Ohr was staying at the home of defendant, while defendant’s wife was in the sanitarium, he went to defendant’s place of business and made inquiry for him and was told that defendant was at his residence. Appellant’s ground of objection to this testimony was that it might have led the jury to believe that appellant was at his residence with Freddie Mae Ohr. In our view of this matter, if the evidence was fairly susceptible of that construction, it was legitimate to go before the jury; if it was not susceptible of that construction, it was harmless, and we are inclined to think that its admission was not such error as to be prejudicial.

Finding ourselves unable to agree with appellant’s contentions, and believing no reversible error appears in the record, the judgment of the trial court will be affirmed. 
      <g=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <£=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     