
    CHAPMAN v. STATE.
    (No. 8967.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.)
    Lewdness &wkey;>10 — Intercourse may be shown by circumstantial evidence.
    In prosecution for adultery, intercourse may be shown by circumstantial evidence, but evidence of opportunity and suggestive circumstances is not 'sufficient to overcome presumption of innocence.
    Commissioners’ Decision.
    Appeal from Shackelford County Court; Richard Dyess, Judge.
    M. E. Chapman was convicted of adultery, and he appeals.
    Reversed and remanded.
    D. H. Welch, of Breckenridge, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin for the State.
   BERRY, J.

Appellant was convicted, in the county court of Shackelford county, for the offense of adultery, and his punishment assessed at a fine of $250. This offense was .laid under that part of the statute which prohibits a married person from living with an unmarried person and having sexual intercourse while living together.

We do not deem it necessary to make a statement of the facts. It is sufficient to say that the state relied entirely on circumstantial evidence to show an' act of intercourse.

While the state is authorized, and in most cases compelled, to resort to this character of testimony to prove the act of intercourse in a case of adultery, yet this court has always held that mere evidence of opportunity and suggestive' circumstances are not sufficient to overcome the presumption of innocence. Green v. State, 53 Tex. Cr. R. 540, 110 S. W. 908; Childress v. State, 85 Tex. Cr. R. 22, 210 S. W. 193; Koger v. State, 73 Tex. Cr. R. 448, 165 S. W. 577.

Under this rule, we do not believe that the circumstances are of sufficient strength to lead to the dispassionate conclusion that the parties had sexual intercourse during the time they are alleged to have lived together. Under all the circumstances in the case, we are also unable to say that the parties lived together in Shackelford county at the time alleged in the information. Bradshaw v. State (Tex. Cr. App.) 61 S. W. 713; Boswell v. State, 48 Tex. Cr. R. 47, 85 S. W. 1077, 122 Am. St. Rep. 731.

Appellant may be guilty as charged, but the facts in this case fail to impress us as showing guilt with that degree of certainty that the law requires, and hence it is our opinion that the judgment should be 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.  