
    YATES v. STATE.
    (No. 5308.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Indictment and Information ⅞=>110(1)— Want of Necessary Allegations — Statutory Statement.
    In adultery prosecution, complaint and information containing no allegation that the habitual carnal intercourse was “without living together” was fatally defective, such words being statutory statement and requirement.
    2. Criminal Law <S=»1032(5) — Appeal—Defective Indictment.
    Insufficiency of indictments or complaints as to matters of substance may be availed of for first time in Court of Criminal Appeals.
    Appeal from Hamilton County Court; Joe H. Eidson, Judge.
    Inez Dowdy Yates was convicted of adultery, and she appeals.
    Reversed and case dismissed.
    H. E. Chesley, of Hamilton, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case the appellant was convicted in the county court of Hamilton county for the offense of adultery, and her punishment fixed at a fine of $200.

Appellant contends before this court that the evidence is not sufficient to sustain the verdict, and cites the case of Cordill v. State, 201 S. W. 181, as^ authority for that contention. We think appellant misconceives the effect of the holding in the Cordill Case, which merely held that a specific number of instances in evidence, as in that case, did not constitute habitual carnal intercourse, but in the opinion the court plainly states as follows;

“Where the state relies alone upon proof of specific instances of a limited number of acts of this character, and where the evidence excludes the idea that there were other acts, and where there are no attending circumstances upon which to found the inference that the intercourse was habitual, the proof is not sufficient.”

It will be observed from- this quotation from the opinion of the coúrt in the case cited that there is nothing there applicable to the contention nor to the facts of the instant case. This court has held that one act of intercourse corroborated by sufficient other facts would justify a conviction. Mabry v. State, 54 Tex. Cr. R. 449, 114 S. W. 378.

This case must be reversed because of the insufficiency of the complaint and information. An inspection of same as they appear the record discloses no allegation of the fact that the habitual carnal intercourse was “without living together.” This is the plain statutory statement and requirement, and its omission has been held fatal in every prosecution of wliich we are aware where the question has been before this court, whether raised in the court below or here for the first time. It is no new doctrine in this court that matters that are of substance in indictments or complaints may be availed of even in this court for the first time. In Hatch v. State, 76 Tex. Cr. R. 423, 174 S. W. 1062, Judge Prendergast, in a misdemeanor case, held that—

“If the pleading was fatally defective in the particulars mentioned or in any other material point, advantage could be taken of it, even on motion for rehearing.”

As to the necessity for the allegation in the .state’s pleading that the habitual carnal intercourse “was without living together,” see Cannedy v. State, 58 Tex. Cr. R. 184, 125 S. W. 31; Jones v. State, 29 Tex. App. 347, 16 S. W. 189; Mitten v. State, 24 Tex. App. 349, 6 S. W. 196; Pen. Code, art. 490.

Because of the insufficiency of the state’s pleadings, the judgment of the lower court is reversed and the ease dismissed. 
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