
    HAY v. STATE.
    (No. 6957.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1922.)
    1. Indictment and information <&wkey;l7l — State bound by election to prosecute defendant for crime charged to have been committed in particular way.
    Where an offense may be committed in different ways, and the state has elected to charge the defendant with committing the offense in a particular way, the proof must sustain* the charge. ■
    2. Lewdness &wkey;>l — “Living together,” within statute as to fornication, defined.
    Under Pen. Code 1911, art. 494, providing that fornication may be committed either by living together and carnal intercourse with each other, or by habitual carnal intercourse with each other without living together, the parties, in order to be “living together,” must dwell or reside together in the same habitation as a common or joint residing place.
    3. Lewdness >&wkey;G0 — Evidence held insufficient to sustain conviction.
    In prosecution for fornication, in which it was charged that defendant “lived together” and had carnal intercourse with named woman, evidence held insufficient to sustain conviction, in that there was no proof that they lived together.
    Appeal from Tom Green County Court; J. T. Mathison, Judge.
    Roy Hay was convicted of fornication, and he appeals.
    Reversed and remanded.
    W. A. Anderson and Taylor & McNutt, all of San Angelo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for fornication; punishment, fine of $50.

The complaint and information charges appellant with having “lived together” and had carnal .intercourse with Grace Holloway. The state, having elected to charge this method only of committing the alleged offense, is bound thereby, and the proof must sustain the charge, or the conviction must fall. Fornication may be committed in one of two ways: (1) By living together and carnal intercourse with each other. (2) By habitual carnal intercourse with each other without living together. Article 494, P. C.; Thomas v. State, 28 Tex. App. 300, 12 S. W. 1098. “Living together” means that the parties dwell or reside together in, the same habitation as a common or joint residing place. Thomas v. State, supra; Mitten v. State, 24 Tex. App. 346, 6 S. W. 196; Bird v. State, 27 Tex. App. 635, 11 S. W. 641, 11 Am. St. Rep. 214.

Does the proof meet the requirement of the law? Grace Holloway was an unmarried woman. About midnight appellant was seen to go into her house. A few minutes later two officers found him undressed in her bed. She was also in her nightclothes. When the officers entered the house, she said, “This has been going on four years.” Appellant’s car had been seen at her house on several occasions, and he had also been seen there several times. No effort appears to have been made to show they occupied the house as a “common or joint residing place.” Grace Holloway testified, but the extent of her evidence was to admit that she had known appellant four or five years, and that he was in her room at the time in question. Admitting the truth of the state’s entire testimony, there is a total absence of any proof that the parties were “living together.” Improper relations may have existed between them for four years, and still they may have never “lived together,” as the law contemplates that term. The conviction under the allegations in the information is not supported by the facts. The judgment must bo reversed, and the cause remanded.  