
    SIMMONS v. STATE.
    (No. 3993.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.
    Rehearing Denied April 5, 1916.)
    1. Cbiminal Law &wkey;>406(4) — Secrecy of Proceedings — Evidence of Grand Juror.
    The admission of a grand juror’s testimony as to what the accused testified to before the grand jury when subpoenaed and required to answer, without being informed of her privilege, is erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 920-927; Dec. Dig. <&wkey;>406 (4).] :
    2. Adultery &wkey;>7 — Indictment—Sufficiency — Surplusage.
    In charging the crime of adultery, the indictment need not allege the name of the accused’s spouse, and, if alleged, it may be treated as surplusage.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 12-16; Dec. Dig. &wkey;7.]
    3. Adultery &wkey;>10 — Marriage of Accused-Presumptions.
    The state need not prove that the alleged adulterer’s spouse was actually living at the time of the offense charged, but from proof that he was alive within one year prior thereto, the rebuttable presumption that he still lived arises.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. § 19; Dec. Dig. <&wkey;10.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Lizzie Simmons was convicted of adultery, and she appeals.
    Reversed.
    W. H. Fears and J. C. Lumpkins, both of Waxahachie, for appellant Tom Whipple, Co. Atty., of Waxahachie, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for adultery, with the lowest fine assessed.

Appellant’s bill of exceptions No. 3, in substance and in effect, shows that, while the grand jury was investigating this case, they had appellant brought before them on a subpoena. They administered to her the oath required by law, and at the time explained to her the nature of that oath, and told her that she had to tell the truth to whatever question that was asked her, and, if she did not tell the truth, they would send her to the penitentiary. They did not warn her that she had the right to testify or not as to anything that would implicate her in the offense They then asked her whether she was a married, woman, and she thereupon answered that she was, and told to whom and when she was married. Immediately upon the close of her testimony, they delivered her to the constable, the officer who had summoned and brought her before them, with instructions to lock her up in jail, which was done. Soon afterwards the grand jury returned the indictment in this case against her. On this trial, they introduced the foreman of the grand jury and permitted him, over her objections, to testify what she had testified before the grand jury. The admission of the grand juror’s testimony was clearly erroneous, and must result in the reversal of the judgment. Wood v. State, 22 Texas App. 431, 3 S. W. 336; Gilder v. State, 35 Tex. Cr. R. 360, 33 S. W. 867; Calloway v. State, 55 Tex. Cr. R. 262, 116 S. W. 575; Fry v. State, 58 Tex. Cr. R. 169, 124 S. W. 920. It is unnecessary to cite other cases.

In tlie offense of adultery, it is unnecessary for tlie indictment to allege tlie name of tlie person to wliom an accused is married. Even, if alleged, it may be treated as surplusage. Bodkins v. State, 172 S. W. 216; Goodwin v. State, 70 Tex. Cr. R. 600, 158 S. W. 274. However, it would be better not to allege tbe name of tbe husband or wife to whom an accused is married.

When proper evidence that one or the other of the parties to the offense of adultery is married as alleged, it would not be necessary for the state to prove that the husband or wife, by positive proof, was actually living at the time of the alleged offense, especially when proof is made that the husband or wife, as the case may be, was living within a year prior thereto. Both the presumption in law and in fact would be that the party was still living, unless other proof was introduced to show the death of the party before the offense was committed.

It is unnecessary to discuss any of the other questions raised, for the error in admitting the testimony of the foreman of the grand jury will cause the reversal of this case. 
      
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     