
    BODKINS v. STATE.
    (No. 3254.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    On Motion for Rehearing, Dec. 2, 1914.
    Further Rehearing Denied Jan. 6, 1915.)
    1. Bail (§ 64) — Defective Recognizance.
    Where a criminal appeal recognizance does not conclude with the words “in this case,” as required by statute, the appeal will be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dec. Dig. § 64.]
    On Motion for Rehearing.
    2. Adultery (§ 13) — Admissibility of Evidence-Prior Acts.
    Where defendant’s niece by marriage, with whom he was alleged to have committed adultery, testified that the acts of intercourse had been going on for two years prior to a date within the period of limitations, the admission of the evidence was not error as testimony of acts the prosecution for which was barred by the statute, where the court charged that there could be no conviction for acts committed more than two years prior to the finding of the indictment.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 28-30; Dec. Dig. § 13.]
    3. Adultery (§ 13) — Admissibility of Evidence-Birth of Child.
    In a prosecution of defendant for adultery with his wife’s niece, who had been living in his home, evidence that the girl had gone from defendant’s home to a home for fallen girls and had there given birth to a baby is admissible, when limited to the issue whether the niece had had intercourse with some man.
    [Ed. Note. — For other cases, see Adultery. Cent. Dig. §§ 28-30; Dec. Dig. § 13.]
    4. Witnesses (§ 277) — Cross-Examination of Accused — Scope of Direct Examination.
    Where one accused of adultery with his wife]s niece admitted that she had been living in his home, but denied having intercourse with her, and introduced testimony reflecting on her good name, he can be asked on cross-examination whether he knew of any reason why she would falsely testify against him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.}
    5. Criminal Law (§ 720) — Trial—Misconduct of Prosecutor — Argument.
    Where the evidence showed that defendant had begun to have intercourse with his wife’s-niece when she was only 14 years old, but that the county attorney did not learn of it until more than one year after she became 15, argument by the county attorney that defendant could and would have been prosecuted for rape if his crime had been detected before the statute of _ limitations had run was a comment on the-evidence, and not error, especially where no-special charge in regard thereto was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    6. Criminal Law (§ 841) — Appeal — Objections to Charge — Time for Making.
    Objections to the court’s charge in a criminal prosecution which were made after the charge had been read to the jury need not be considered.
    [Ed. Note — For other eases, see Criminal Law, Cent. Dig.'§ 2022; Dec. Dig. § 841.]
    7. Adultery (§ 15) — Instructions—Name of Defendant’s Wife.
    Where an indictment for adultery alleged-the name of defendant’s wife, and it was conclusively shown that defendant was married and living with his wife at the time of the acts charged, an instruction that did not require the-jury to find that he was married to the person named in the indictment was not erroneous.
    [Ed. Note. — For other cases, see Adultery,. Cent. Dig. §§ 34-36; Dec. Dig. § 15.]
    8. Adultery (§ 7) — Indictment — Name of-Defendant’s Wife.
    In an indictment for adultery, an allegation of the name of defendant’s wife is sur-plusage.
    [Ed. Note. — For other cases, see Adultery,. Cent. Dig. §§ 12-16; Dec. Dig. § 7.]
    9. Lewdness (§ 1) — Elements—“Living Together.”
    Evidence of adultery between defendant and his wife’s niece, who was living in his home, authorizes a conviction of adultery b.v “living together” contrary to Pen. Code 1879} art. 333; since it is not necessary to constitute that offense that the parties live together as man and wife, but only that they live together and have intercourse.
    [Ed. Note. — For other cases, see Lewdness, Cent. Dig. §§ 1-^1; Dec. Dig. § 1.]
    10. Adultery (§ 14) — Evidence—Corroboration of Accomplice.
    In a prosecution for adultery, evidence that defendant had tried to get the girl’s brother to induce her to withdraw her charge, agreed to-give her money and to marry her, and had stated that he knew he had done wrong and wanted to show he was a man, is sufficient corroboration of the testimony of the accomplice.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dec. Dig. § 14.]
    Appeal from Tarrant County Court; T. W. Simmons, Special Judge.
    
      'S. T. Bodkins was convicted of adultery, and lie appeals^
    Appeal dismissed, but reinstated on motion for rebearing, and judgment affirmed. ,
    Poulter & Johnson, of Ft. Worth, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes-
    
   DAVIDSON, J.

The Assistant Attorney General moves to dismiss this appeal because of the insufficiency of the recognizance. We find that his motion is well taken. It does not comply with that part of the statute which requires the form of the recognizance to conclude with the words “in this case.” Quite a number of cases have been dismissed upon this omission in the recognizance, and, following those cases, the motion will be granted, and the appeal dismissed.

On Motion for Rehearing.

HARPER, J.

This case was dismissed on account of insufficient recognizance, but appellant has filed a sufficient recognizance and the case is now reinstated. Appellant was convicted of adultery, and his punishment assessed at a fine of $1,000 — the maximum punishment authorized by law.

The prosecuting witness is named Annie Lee Heather. Appellant married her aunt, and .when Annie Lee’s father and mother died, Annie Lee went to live with appellant and his wife; she then being only 8 years old. Appellant cared for her, sent her to school, and she continued to reside with appellant and his wife for about 8 years, when appellant’s wife died. Annie Lee was pregnant at the date of the death .of her aunt, and shortly thereafter left appellant’s home and went to the Virginia Kate Johnson Home, at Dallas, a home for fallen girls, where she gave birth to a baby on the 14th day of last March. She testified appellant began to have intercourse with her when she was 14 years old, and continued to do so for about 2 years, the last act of intercourse taking place in June of last year; that she could, not say how often he had intercourse with her during the 2 years, but it occurred on an average of about twice a month.

The indictment in this case was returned February 18, 1914, and appellant objected to the witness being allowed to testify that the acts of intercourse had been going on for 2 years prior to June, 1913, as a portion of such acts would be barred — that is, all acts that occurred prior to 2 years before the return of the indictment. As the girl by her testimony would show that the acts were begun while she was only 14 years old, and continued for 2 years, up to June 18,' 1913, there was no error in admitting the testimony. Of course, he could not be convicted of any offense that occurred more than 2 years prior to the filing of the indictment, and the court in his charge so informed the jury, but, when the witness had testified to a course of conduct within the period of limitation that would authorize a conviction, there would be no error in permitting her to state how long such course of conduct had continued. He also objected to her being permitted to testify that she had' never had intercourse with any other man. Owing to the cross-examination of appellant, .this testimony became material and admissible.

It further appears that, when the county attorney’s office learned of the condition of the girl, the county attorney had her summoned to appear before him; that this was in February, and after this she did not live at appellant’s house any longer; and that she then went to the Virginia Johnson Home, in Dallas, a home for fallen girls, and while there had given birth to a baby. Appellant objected to this testimony, claiming that it would be prejudicial to him. Certainly it was permissible for the girl to say when she left appellant’s home, and it was not error to permit her to say where she was staying, and it was perfectly permissible in a case of this character for her to state that she had given birth to a baby. Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477. The court, at the time he admitted the testimony, stated he would admit it on the issue of whether or not she had had intercourse with some one, and limit it to that purpose alone. The fact that the prosecuting witness was an inmate of the home for fallen women, and had there given birth to a baby, would not tend to prove whether or not appellant had been guilty of adultery with this girl, and, if the remainder of the testimony convinced the jury beyond a reasonable doubt that he was guilty of adultery with her, the fact that these circumstances might cause them to assess a heavier punishment would not render them inadmissible; for, if appellant was guilty of adultery as charged, it was his acts which brought about the condition.

Appellant testified in his own behalf, and admitted that the girl had been an inmate of his home ever since she was 8' years old (some 8 years), but denied emphatically that he had ever had an act of intercourse with her. He introduced testimony tending to reflect on the girl’s good name, and, while he was testifying, he was asked if he knew of any reason why the girl would come here and testify falsely against him, and he answered that he did not. If he had known any reason it would have been, admissible, as tending to show the motive of the girl, and as he, by the testimony introduced by him, attempted to so severely assail her, there was no error in permitting the question to be asked.

The girl’s testimony, if true, showed that appellant had begun to have intercourse with her when she was 14 years of age, and had continued until about the time she was 16 years old. Appellant complains that tlie county attorney, in addressing the jury, said:

“It may seem surprising to you that this defendant is not prosecuted for. rape — a felony. He might have been prosecuted for rape, instead of adultery, if limitation had not run against the rape case; in fact, he should have been prosecuted for rape, for the evidence, in this case makes out a case of rape, and it is lucky for him that his crime was not detected before the felony case was barred by limitation; and under these circumstances any fine or even a jail sentence is too light for this defendant, and if the county attorney’s office had known about it sooner he would have gone to the penitentiary:”

The bill shows these remarks were objected to, and the court orally requested to instruct the jury not to consider them, but no written instruction in regard thereto was prepared and submitted to the court. Appellant earnestly insists this is error, and such error that it should result in a reversal of the ease, even though he asked no written instructions in regard thereto, and cites us to the case of Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 906, and other cases, wherein it is held:

“The rule has been laid down that, in cases of this character, counsel could not be too careful, in the discussion of the ease, not to travel out of the record, and especially should scrupulously avoid any improper or unfair means to secure a conviction.”

This rule of law we heartily indorse and would reiterate; but did counsel in this case, by the use of these remarks, “travel outside of the record?” The girl’s testimony shows that the acts of intercourse began when she was only 14 years of age. If her testimony was true, this would constitute rape, and the remarks of the county attorney in so stating were within the record. Also the testimony shows that the first intimation the officers had was in February, 1913, when the girl was past 16 years of age, and, as the law prescribes that a prosecution for rape must be brought within a year, and, if an act of intercourse had occurred within a year prior thereto, she was more than 15 years old at the time, consequently a prosecution for rape was barred, and shown to be barred by the testimony on this trial. So the county attorney was merely commenting on the testimony introduced on the trial, and if appellant had prepared a special charge and presented it there would have been no error in refusing it; but especially does the bill present no error as he did not prepare and present any special charge in regard thereto.

There is a bill in the record complaining of the court’s charge in two respects, but the bill shows that it was after the charge had been read to the jury before any objection was made thereto, and we might for this reason refuse to consider such objections.

One of the objections is that, as the indictment alleged that appellant, at the time of his alleged acts of intercourse with the girl, Annie Lee Heather, was married to another person — to wit, Lillian Bodkins — the court’s charge was erroneous, in that it only required the jury to find that appellant was married to another person, and did not go further and require them to find that he was married to Lillian Bodkins. As there was no question raised as to this matter on the trial, and the proof conclusively shows that appellant married the aunt of the' prosecutrix in 1900, and continuously lived with her until her death, this would present no error. If there had been any question raised by the evidence that the woman alleged was not the wife of appellant, a more serious question might be presented.

However, it has been held by this court that the allegation of the name of the woman to whom the appellant is married is wholly' unnecessary to be stated in the indictment, and, if stated, may be treated as surplusage, and therefore not necessary to be proven. This identical question was presented in the case of Collum v. State, 10 Tex. App. 712, and the court held:

“In our opinion, it would be sufficient to allege in the indictment the lawful marriage to some other person, as set out in the statute, and the law only demands that proof be made that the party was lawfully married to some other person than the one with whom the adultery is charged, and it is not incumbent on the prosecution to either allege or prove the name of the other person to whom on.e of the parties was lawfully married. We therefore conclude that the question raised on the subject of the testimony of the name of this other person was wholly unimportant and immaterial, and an unnecessary consumption of time. This portion of the indictment, not being necessary to the description of the offense, might properly be treated as surplusage.”

Besides this, the testimony of Mrs. Ma-honey shows that appellant’s wife was named Lillian Bodkins.

The only other complaint is that the court erred in submitting the first count in the indictment, wherein it charged a “living. together.” These words have been defined by this court in the case of Bird v. State, 27 Tex. App. 637, 11 S. W. 641, 11 Am. St. Rep. 214:

“In the case before us the defendant stands convicted of adultery, committed in the first mode named in article 333, by living together with one Ida Smith, and having carnal intercourse with her. To support such conviction it was essential that the state should prove not only that the parties had carnal intercourse with each other, but also that they lived together. A ‘living together’ is not defined by the Oode. These words are therefore ‘to be taken and- construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relatiye to which they are employed.’ Penal Oode, art. 10. Guided by this rule of construction, we are of the opinion that the term ‘living together,’ as used in articles 333 and 337 of the Penal Code, means that the parties must dwell or reside together — abide together in the same habitátion as a common or joint residing place. This interpretation of the term is more restricted than has been given to it in decisions made under the former statutes. Swancoat v. State, 4 Tex. App. 105; Parks v. State, 4 Tex. App. 134.”

This ruling has been approved in Burnett v. State, 44 Tex. Cr. R. 226, 70 S. W. 207, and other eases. Appellant’s contention seems to he that they must have been living together as man and wife to constitute a “living together,” as used in the Code. This has been decided adversely to his contention in the case of Shaw v. State, 49 Tex. Cr. R. 379, 91 S. W. 1087, wherein it was held:

“The charge is that appellant and Coons wer§ committing adultery ‘by living together.’ A special charge was requested to the effect that, in order to constitute this offense as charged, ‘the parties must live together as man and wife,’ which was refused by the court. It is not necessary that the parties should ‘live together as man and wife’ in order to constitute adultery under this phase of the statute. Bird v. State, 27 Tex. App. 635 [11 S. W. 641, 11 Am. St. Rep. 214]; Massey v. State, 65 S. W. 911. It is only necessary that they live together and have intercourse; it need not be such a living together as man and wife.”

The only charge requested and not given was a request for peremptory instructions, and the court did not err in refusing it.

The only other complaint is that, while the testimony of Annie Lee Heather might make a case, she being an accomplice in law, her testimony must be corroborated. The court so instructed the jury, giving appellant’s special charge on this issue, and we think the evidence is sufficient to corroborate her testimony to the extent required by law. In addition to other facts and circumstances in evidence, Carl D. Heather testified:

“I had a conversation with this defendant with reference to this matter; the exact time I do not remember, but it was in Dallas on Sunday. He met me and paid my way over there, and I came and he met me there. He tried to get me to make my sister make a statement that she had made a false statement against him to the county attorney and one to his lawyers, and he said he would give me something like $200 or $300 in her behalf, and would contribute $25 or $50 a month and support her; that he knew he had done wrong, and wanted to show me that he was a man, and said that he would meet her in Waxahachie later and marry her, and take her and take care of her if I said so.”

The judgment is affirmed.  