
    GEORGE v. STATE.
    (No. 6355.)
    (Court of Criminal Appeals of Texas.
    Oct. 19, 1921.
    State’s Rehearing Denied Jan. 11, 1922.)
    1. Adultery ©=I4 — Guilt may be proven by circumstances.
    Adultery may be proven by circumstances as well as by direct evidence.
    2. Criminal law ©=417(14)— Statement of third person not admissible except for purpose of impeachment.
    In a prosecution for adultery, a statement made by the woman in the case to another that accused was going to kill her husband could not be used as evidence against the accused as establishing guilt upon the charge of adultery, but could only be admissible for the purpose of impeaching such woman.
    3. Adultery ©=I4 — Evidence insufficient to sustain conviction.
    In a prosecution for adultery, evidence held insufficient to sustain conviction.
    Appeal from Williamson County Court; F. D. Love, Judge.
    Paul George was convicted of adultery, and he appeals.
    Reversed and remanded.
    Critz & Lawhon, of Taylor, for appellant.
    W. C. Wofford, Luke Mankin, and Dan Moody, Co. Atty., all of Taylor, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted of adultery, and his punishment assessed at a fine of $1,000. The complaint and information charges that he was guilty of having habitual carnal intercourse with Annie Furh-mann without living with said party. The record reaches us with only one assignment of error, which calls in question the sufficiency of the evidence to convict, and necessarily brings in review the entire testimony in the case.

The following are substantially the facts t Charlie Furhmann, the husband of the said Annie Furhmann, testified that he and his-wife had been married about 18 years; that about 4 or 5 months prior to January 3, 1921, appellant began coming to or near his house and taking said Annie Furhmann out in an automobile; he would come sometimes in the daytime and sometimes at night, but most of the time he would come about 8 o’clock at night, and they would return between 10 and 11 o’clock. He would not come directly to the house, but within a block or' so, and sound the horn on his car, and said Annie Furhmann would go out and get in the car and they would drive away. Upon one occasion the witness claims that his wife was in her nightgown about 8 o’clock at night when appellant sounded his horn; she grabbed a cloak and ran out to the car and put on tlie cloak after she got in the car, and they drove away and got back at about the usual time; that on another occasion he came when his wife was in her bare feet, and she went away with him in that condition. Witness also claims that one time appellant called over the telephone and he (witness) answered, and, recognizing appellant’s voice, told him he wanted him to let his wife alone, and that appellant replied that he was going to have her at all costs. Witness claims that on one occasion appellant came to the street in front of his house and he shot at him, whereupon he drove away, but in a few minutes came back, and his wife got in the car with him and they drove away as usual; that he continued to come and take witness’ wife away after witness had shot at him. The witness claims that appellant would average coming and carrying his wife away three or four times a week, and sometimes he would take her out every night in the week. This witness says he never at any time caught his wife and appellant in bed together and never saw him at any time put his hand on her; never saw, them in any act of intercourse at any time or place; and did not know what they did while away in the- ear, or where they went. It developed on cross-examination of the husband of appellant’s alleged paramour that it was probable that he himself was living in adultery with another woman, and that a suit was pending in which he had sued his wife for divorce. It also developed in evidence that, after the separation between Charlie Eurhmann and his wife occurred, appellant and Annie Eurhmann were occupying the same house; which was explained in the testimony, both of appellant and Annie Eurhmann.

The state introduced George Hanley, who testified that on two occasions, once in daytime and once at night, he had seen appellant and Annie Eurhmann in a ear together, but saw no improper conduct between them, and on both occasions they were in a public place. Annie Furhmann testified that there had never been any improper relations between her and appellant, denied sexual intercourse with him at any time, and specifically denied the statement of her husband that she ever went with appellant in an automobile when she was barefooted or clothed only in her nightgown. She also testified that she was occupying part of a house, the other portion of which was occupied by á Bohemian family; that appellant was boarding with her, paying her $9 per week; that he worked at the railroad shop at night and in the daytime slept at the house. Upon cross-examination this witness was asked by the state if she had not told her niece, Mrs. Hanley, that she was in love with appellant, and that appellant was going to kill Charlie Eurh-mann, and that she (witness) would take it upon herself and get out of it; all of which she denied. She was impeached in this particular by Mrs. Hanley, who testified, affirming that Annie Eurhmann had made this statement to her about November or December of 1920. Appellant .denied that he had ever at any time had intercourse with Annie Eurhmann, or that there had ever been any improper relations between them. He claimed to he working at the railroad shop at Taylor, and was working from 12 o’clock at night until about S o’clock in the morning; that he owned an automobile; that at such times as he was not busy at the railroad shop he operated his car as a service car. He admitted he had been out with Annie Eurhmann on various occasions, but claimed she had always telephoned him, and that he had taken her out wherever she wanted to go, for which she would pay him. She denied that at any time she was ever in her nightgown or was barefooted. Appellant says that one time when he went to get Mrs. Eurhmann that Charlie Furhmann shot his pistol off, but did not know whether he was shooting at him or not; that one time he took Mrs. Eurhmann out in the country after she had telephoned him that she wanted to go out for the purpose of selling a horse. This is substantially all the evidence in the case, and is set out at greater length than we would ordinarily think necessary, on account of the sole question being the sufficiency of the evidence to support the conviction.

Practically all of the incriminating testimony comes from the husband of the alleged paramour of appellant. It would appear that he himself is not entirely free from criticism, having admitted on cross-examination adulterous relations on his part with another woman, and that he had sued his wife for a divorce, which suit was pending at the time of the instant trial. If his testimony is to be believed and given full credence, it unquestionably presents a series of suspicious circumstances, showing at least acts of indiscretion on the part of his wife and of appellant; but, it being purely a case of circumstantial evidence, is it of that cogency to be conclusive upon the issue of adulterous relations between the parties involved? It is true guilt may be proven by circumstances as well as by direct evidence, but in the instant ease are the circumstances detailed of such character as to exclude every reasonable hypothesis than that of appellant’s guilt? The statement made by Mrs. Hanley that upon one occasion Mrs. Eurhmann had told her that appellant was going to kill Charlie Burhmann could not be used as evidence against appellant as establishing guilt upon the charge of adultery, but was only admissible for the purpose of impeaching Mrs. Eurhmann. That there may have been a case of infatuation between appellant and Mrs. Furhmann the evidence would seem td disclose practically beyond question, unless appellant’s testimony should be accepted that their numerous automobile rides were at her request, and that he was acting only in the capacity of a jitney driver. The jury seems not to have placed much credence in his testimony, and evidently disregarded this theory.

It occurs to us that, if the automobile rides were as continuous as claimed by the state, in all probability it would have excited the curiosity and suspicion of some one in the neighborhood, whose attention might have been attracted by the manner in which appellant would signal for Mrs. Furhmann, and who might have been able to throw some light on that issue, and at least not have left the case depending solely upon the paramour’s husband’s testimony, who might or might not have been influenced in this case by the fact that he was seeking a divorce from his wife, and whose own sexual relations with another woman were of ah improper character. We cannot bring ourselves to the conclusion that the evidence reaches that degree of certainty required where the proof of guilt is dependent upon circumstances alone. We do not review or discuss' the many cases which have been before this court involving this same question, believing it would be of no interest to do so, as they are practically all fact'Cases, necessarily so, by reason of the issues raised, but refer to the following cases as supporting our opinion: Green v. State, 53 Tex. Cr. R. 540, 110 S. W. 908; Sadler v. State, 52 Tex. Cr. R. 439, 107 S. W. 352; Quinn v. State, 51 Tex. Cr. R. 155, 101 S. W. 248; Eaton v. State, 60 Tex. Cr. R. 429, 132 S. W. 356; Koger v. State, 73 Tex. Cr. R. 448, 165 S. W. 577; Kahn v. State, 38 S. W. 989; Anderson v. State, 81 Tex. Cr. R. 37, 193 S. W. 301; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919; Manuel v. State, 45 Tex. Cr. R. 97, 74 S. W. 30; Price v. State, 64 Tex. Cr. R. 448, 142 S. W. 586.

The judgment is reversed, and the cause remanded. 
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests ana Indexes
     