
    STUBBLEFIELD v. STATE.
    (No. 4886.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Fornication <@=>7 — Proof.
    Under Pen. Code 1911, art. 494, defining “fornication”, as the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried, the state must show that the parties were single persons.
    [Ed. Note. — For other definitions., see Words and Phrases, First and Second Series, Fornication.]
    Appeal from ICaufman County Court; J. P. Coon, Judge.
    Luther Stubblefield was convicted of fornication, and he appeals.
    Reversed and remanded.
    Huffmaster & Huffmaster, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of fornication. This offense is defined in article 494, P. O., as follows:

“ ‘Fornication’ is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried.”

There is no evidence to the fact that either the man or the woman named in the indictment were unmarried. The absence of this proof renders the evidence insufficient to sustain the conviction. The exact question was passed upon by this court in the case of Wells v. State, 9 Tex. App. 160, which was reversed on the same point. Presiding Judge White, writing the opinion, remarks:

“To make out the case the state should have shown the parties in the language of the statute were both unmarried.”

The same disposition on the same ground was made of the case of Watson v. State, 62 Tex. Cr. R. 620, 138 S. W. 611.

The judgment of the lower court is reversed, and the cause remanded.  