
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1913.
    Rehearing Denied March 19, 1913.)
    1. Criminal Law (§ 950)- — New Trial — Jurisdiction op Motion.
    Where no notice of appeal was given until after the motion for a new trial was overruled, the giving of an appeal recognizance intended to he only temporary, and which was set aside on the hearing of the motion, a new recognizance being then given, did not deprive the trial court of jurisdiction of the motion.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent." Dig. §§ 2345-2348; Dec. Dig. § 950.]
    2. Adultery (§ 14) — Evidence — Sufficiency.
    Evidence, on a trial for adultery, held sufficient to justify the jury in finding that accused and the woman were both married, and that his wife and her husband were living.
    [Ed. Note. — For other eases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dec. Dig. § 14.]
    3. Adultery (§ 14) — Evidence — Sufficiency.
    Evidence, on a trial for adultery, held sufficient to justify the jury in finding that accused and the woman lived together as man and wife, and had sexual intercourse while living together.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dec. Dig. § 14.]
    4. Adultery (§ 14) — Evidence — Sufficiency.
    On a trial for adultery, sexual intercourse while living together may be established by circumstantial testimony.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dec.' Dig. § 14.]
    
      6. Criminal Taw (§ 1091) — Appeal—Bills of Exception — Sufficiency.
    A bill of exception complaining of a question, on a trial for adultery, as to bow long accused and the woman lived together, on the ground that it was leading, and of the answer that they lived together three months, on the ground that it was a conclusion, which did not give the status of the case, the. other testimony, or anything except the question and answer, was insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    6. Criminal Law (§ 448) — Evidence—Conclusions.
    Testimony, on a trial for adultery, that accused and a woman “lived together” was not objectionable as a conclusion, especially where the witness had stated the facts showing that they lived together.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    7. Adultery (§ 11) — Evidence-tAdmissibilITY.
    Evidence, on a trial for adultery, that delivery wagons carried groceries to the house where it was claimed accused and a woman lived together as man and wife was competent.
    [Ed. Note. — For other eases, see Adultery, Cent. Dig. §§ 20, 23; Dec. Dig. § 11.]
    8. Criminal Law (§ 1169) — Appeal—Harmless Error.
    The admission of evidence, on a trial for adultery, that delivery wagons carried groceries to the house where it was claimed accused and a woman lived together as man and wife, if erroneous, .was harmless.
    [Ed, Note. — For other cases,' see Criminal Law, Cent. Dig. §§ 3088, 3130, 3137-3143; Dee. Dig. § 1169.]
    9. Adultery (§ 12) — Evidence—Admissibility.
    On a trial for adultery, accused’s statement to a witness that the woman was married and her husband living was competent.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 24-27; Dec. Dig. § 12.]
    10. Adultery '(§ 11) — Evidence—Admissibility.
    ■ On a trial for adultery with C., testimony that L., accused’s housekeeper, married, and, after living with her husband but a short time, returned to keeping house for accused, was competent, especially where accused’s witness testified to the same effect.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 20, 23; Dec. Dig. § 11.]
    11. Adultery (§ 11) — Evidence—Admissibility.
    On a trial for adultery with C., testimony that she was a prostitute and had previously been in a house of prostitution, and that accused visited her there ostensibly to urge her to return to her home, and went to her room with her, was competent.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 20, 23; Dec. Dig. § 11.]
    12. Criminal Law (§■ 921) — Appeal — Reservation of Grounds of Review.
    The admission of evidence could not be complained of for the first time on a motion for a new trial, where the question was not raised by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2206-2209; Dec. Dig. § 921.]
    13. Adultery (§ 7) — Information — Separate Counts.
    In a complaint and information for adultery with C., it was proper to charge in one count that accused was married to another person then living, and in another count that C. was so married to another person then living.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 12-16; Dec. Dig. § 7.]
    Appeal from Limestone County Court; W. A. Keeling, Judge.
    Charles Brown was convicted of adultery, and he appeals.
    Affirmed.
    Doyle & Jackson, of Groesbeck, and R. B. Molloy, R. S. Neblett, and R. R. Owen, all of Corsicana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep.’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDBRGAST, J.

From a conviction for adultery with a fine of $1,000, appellant appeals.

The complaint and information are in three counts. The first charges that appellant, a man, and Olivia Coleman, a woman, on or about May 25, 1912, unlawfully lived together and had carnal intercourse with each other; he being then lawfully married to another person then living. The second count charges exactly the same thing, except that, instead of changing that he was lawfully married to another, it charged that the woman was. The third count, which was not submitted to the jury, charged fornication.

The Assistant Attorney General, by motion, seeks to strike from the record the motion for new trial filed within two days after the trial, and all subsequent proceedings of the court below, on the ground that, on the day the case was tried, appellant appealed and then entered into a proper appeal recognizance. We have carefully examined the record; and while it shows that on the day of the conviction and after the conclusion of the trial, in order to prevent the appellant from then going to jail, the court permitted him to execute said appeal recognizance, yet this was agreed at the time to be only temporary to secure his return two days later when his motion for new trial would be made and then acted upon, and, if overruled, a new recognizance would be entered into. ITe did return two days later; his motion for new trial was then filed, acted upon, and overruled; and he then, for the first time, gave notice of appeal, and then entered into a new recognizance, the court setting aside, by express order, the previous recognizance. All this clearly shows that the jurisdiction of this court did not attach on the execution of said first recognizance. No notice of appeal was then given, and no notice of appeal was given until after the overruling of the motion for new trial, at which time he gave said second recognizance. The ' motion of the Assistant Attorney General is therefore overruled.

The appellant introduced no evidence. The evidence by the state was uncontradict-ed. It is unnecessary to give tlie testimony in full. AVe will merely give a summary of it, and substantially quote in some particulars the testimony of some of the witnesses.

Wm. Jeffries testified that Tie was then, and for several years before bad been, deputy sheriff of Navarro county, Tex., and bad known appellant all bis life. He said: “Some time in February or March, 1912, the defendant came to me at Corsicana, Tex., and told me that a woman by the name of Olivia Coleman was in a bawdyhouse in that city, and that he (the defendant) was well acquainted with her father, who lived at Kirven, in Freestone county, and that he (Brown) desired to get her out of the whorehouse and carry her back to her father’s house, and wanted me to go to the whorehouse and use my best efforts to persuade the Coleman woman to leave the whorehouse and go with Brown to her father’s house. The defendant also told me that Olivia Coleman was a married woman -whose husband lived at or near Kirven in Freestone county, and that a doctor had carried Olivia Coleman from Kirven and placed her in the house -of prostitution. This house was run by a woman named Miss Frankie. I told the defendant that I would go with him, and did go with him, to the house where Olivia Coleman was staying. AVe went in the house and I ealled for Olivia Coleman. The defendant did not seem to know her as she was introduced to .Brown. The defendant and I told Miss Frankie the purpose of our mission. The defendant and Olivia Coleman left the parlor and went upstairs together. They remained there about one hour and came down. At Brown’s request I went to see the woman two or three times for the purpose, as I thought, to persuade her to go with the defendant to her father’s or sister’s home.” On cross-examination this witness showed that appellant owned a large farm in Navarro county, and another in Freestone county; that he had a home or house on his Navarro county farm, and had lived there for years; that a widow named Mrs1. Bo we, with several children, had lived with him and kept house for him. He said: “I knew Mr. Brown's first wife. She was divorced from him. A few years ago he married again in Freestone county. I do not know what has become of his last wife. I do not know whether she has1 ever been divorced from him or not. I do not know where she lives. No, sir; I do not know it to be a fact that his present wife is living in San Antonio, Tex. If I had known it, I certainly would have said so. I do not know where Brown has been living during the last four or five months. He sometimes lives in Navarro county, and he sometimes goes to Freestone county to his farm over there.”

Miss Frankie testified: That she lived in Corsicana and was engaged in conducting a bawdy or sporting house there; that she knew Olivia Coleman, and saw her at court on the day of the trial. She said: “Some time in February or March of the year 1912, Olivia Coleman came to my house and wanted to stay with me. She did not go by the name of Olivia Coleman when she was in my house. I rented her a room and she stayed in my house a week and three or four days. When she came there, she had no money. She was a sporting or lewd woman, but made very little money while at my house.” She then showed that she knew the appellant and testified substantially as Mr. Jeffries did about his and appellant’s going to her house to see Olivia Coleman. She said: “The defendant wanted to talk with her. They left the parlor together and went upstairs to Olivia Coleman’s room and stayed there for an hour or an hour and a half. Mr. Brown visited Olivia at my house three or four times during her stay at my house. Whenever the defendant came, he and Olivia Coleman would go upstairs to Olivia’s room. They would usually stay from an hour to two hours in the room. Of course, I do not know what happened in the room when they were there. I am not in the habit of spying around when any of my girls go to their rooms with men.” On cross-examination this witness said: “I went upstairs1 once or twice while the defendant and Olivia Coleman were in the room together. The door was open. I do not know what they had been doinig before I went upstairs, and do not know what they did after I left.” She flurther testified thiat -appellant, when he came there with Mr. Jeffries on his first trip, told her that he wanted to get Olivia Coleman out of the house of prostitution for the purpose of taking her back to her father’s house in Freestone county; that her father was a personal friend of his, and he wanted her to go back to her father’s house or her sister’s, who lived at Teague, in Freestone county; that she never heard Brown say anything to Olivia Coleman at any time; that he never talked with her in her (witness’) presence.

Mr. T. J. Griffith testified that he lived in Mexia, Tex., and that appellant and said Coleman woman lived in the same block where his residence was located; only an alley was between them. He said: “Brown and Mrs. Olivia Coleman lived together at this house (the house they lived in) for about three months. I have seen them there together dozens of times. Brown had a horse and buggy, and I have frequently seen him come in at nights and feed his horse there at the house. He was frequently away from the house in the daytime. I have seen the defendant and Olivia Coleman together there in the yard on many occasions, and have frequently seen them leave the yard and go in the house together. I have seen the Coleman woman frequently carrying stove wood into the house, and I have seen the smoke coming out of the stove flue, and I have seen her washing there at the house, and I have seen the wash clothes' hanging on the line. I never saw any men’s clothes in wash, but I paid no attention to that. I have seen Brown leave the house on several occasions in the morning, hitch his horse to the buggy, and drive away. No one stayed at this house, except the defendant, Brown, and the Coleman woman, except a small boy, who looked to be about 8 or 9 years old.” On cross-examination he testified: “The defendant and this woman lived there at least two or three months. I cannot and will not attempt to say the exact number of times I have seen the defendant at the house. I regarded them as1 married people, and paid very little attention to them.” Then he testified that he never saw any acts of intimacy between them, and was never in the house while they lived there, and knew nothing of the furnishing of the house. He did not at any time see them in bed together, and he never saw him hug or kiss her. He did not know how many beds there were in the house.

Hugh Everett testified that he lived at Mexia, in Limestone county, and knew appellant and said Olivia Coleman. He said: “Some time last February the defendant occupied a house near my residence in the town of Mexia, Tex., in Limestone county. The defendant stayed- at the house one week before the woman Olivia Coleman came there to live. The defendant and the Coleman woman lived in the house for two or three months. The defendant kept a horse and buggy, and frequently at night he came to the house, unhitched his horse, and fed it, and would go into the house. * * * I have seen the defendant and the woman, Mrs. Coleman, frequently'talking in the yard where the house is located. I have seen both of them go into the house at night, and have seen the defendant come out in the morning. The house where the defendant lived was just across the street from my residence. * * * I saw the defendant, Brown, and the woman, Mrs. Coleman, around the place there several times a week and during the time they lived there, which was about three months.” On cross-examination this witness said he was never in the house while these parties lived there; that he never knew them before then; that he never saw anybody at the house during the time they stayed there, except a little boy 8 or 9 years old; that the woman remained at the house about one week after appellant was arrested, and she then left, and he did not know where she went; that she stayed there all the time from the time she first came until she left after Brown was arrested.

We have carefully gone over and considered the whole record in this case and appellant’s brief and all of his authorities cited. It is unnecessary to take up and discuss all of appellant’s claimed errors. The correct disposition of the case does not require this. It depends upon the decision of but few of appellant’s contentions. He claims the evidence was insufficient to sustain the verdict, among others, because it is insufficient to show the marriage and the then living of either the appellant’s wife, or Olivia Coleman’s husband, and that it is insufficient to show that they lived together at this house at the time charged, in contemplation of our statute, and that it is insufficient to establish that they had sexual intercourse while staying at this house.

It is unnecessary to discuss either or all of these several contentions of appellant. In our opinion the evidence is sufficient for the jury to have believed and found that appellant was a married man, and that his wife was then living; that said woman was a married woman and her husband was then living; that they lived together practically as man and wife at this house for three months continuously, as shown by said testimony. That they had sexual intercourse while thus living together can be established by circumstantial, as well as direct, testimony. In fact, practically that is the only way sexual intercourse can usually be shown. The act of sexual intercourse between man and woman, in all instances, is indulged in in as secret and private way as it can be. Both parties always attempt to conceal it and to do all things necessary and proper for preventing others from even suspecting such an act. The evidence clearly and without contradiction shows that this woman was a common prostitute; that appellant learned she was in a whorehouse in Corsicana; that he went there, claiming that he wanted to get her away from that house and take her to her father’s or sister’s; that she was only in this whorehouse about 10 days. He went to see her there repeatedly, but never saw her in the presence of any other. He always took her to her private room and stayed there with her from one to two hours. He succeeded in getting her to leave the whorehouse, but did not take her to her father’s or sister’s. If so, he did not induce her to stay with either of them, but went to another town, got a house, and had her come there and live with him continuously until after he was arrested. No other conclusion could be drawn from the testimony than that he lived with her in adultery in this house in Mexia for the whole length of time she stayed there until his arrest, and that she left about a week after he was arrested.

We have carefully considered all of appellant’s special charges which were refused by the court, and in our opinion, wherever necessary or proper to have been given, they were substantially and fully covered and given by the court’s charge.

By one of appellant’s bills it is shown that, while the state’s witnesses Everett and Griffith were testifying for the state, they were each permitted, over his objections, to testify to this: “That the defendant, Charles Brown, and Olivia Coleman lived together in the town of Mexia for three months or thereabouts.” His objection was that it was a conclusion of the witness; that each witness ought to have stated the facts and let the jury determine whether they lived together or not. The bill further states that said evidence was in response to a leading question, which was, “How long did defendant and Mrs. Olivia Coleman live together in Mexia?” That the court overruled these objections and permitted the question and answer to be given. This is, in substance, the whole of the bill. It in no way gives the status of the case or the other testimony, or anything else about the matter other than what is substantially stated above. This bill, under the long-established and uniform holding of this court, is insufficient to require this court to consider it. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there cited. Clearly the question objected to as leading does not show reversible error. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. Notwithstanding we are not required to pass on this bill as it is, yet we do so, and, in our opinion, this testimony of these witnesses was admissible. If we could go to the record, we would see that the facts were detailed by the witnesses which showed that these parties lived together at this house. And stating as they did, as shown by this bill, was a mere shorthand rendition of the facts. 1 Whart. Crim. Ev. § 458. As said by the court in State v. Brundige, 118 Iowa, 92, 91 N. W. 920: “While the answer called for is in some sense a conclusion, it is one of those conclusions which so far partake of the nature of fact as to be admissible in evidence. To hold such evidence incompetent would limit and hamper the introduction of evidence in a manner not contemplated by any rule of law of which we have any knowledge.” See, also, subdivision 2, § 109314, White’s Code Cr. Proc. p. 704.

The bill objecting to these witnesses stating that they had seen delivery wagons carry groceries to the house Olivia Coleman lived in is likewise insufficient; yet it is our opinion that this testimony, even if improperly admitted, would not constitute reversible error, and could not and did not affect the verdict of the jury. What we have said as to these bills equally applies to another, wherein it is claimed that the witness Jeffries was permitted to state that the defendant told him that Olivia Coleman was a married woman, whose husband lived at or near Kirven, in Freestone county; yet, if we could consider the bill, in our opinion this evidence was pertinent and clearly admissible. The same thing applies to another of appellant’s bills complaining that the witness Jeffries was permitted to tell that Mrs. Lowe, the housekeeper of appellant, married a man by the name of Jackson a few years ago; that they lived together only a short time, when they separated, and she returned to keeping house for appellant. Besides, this was a mere crossing of appellant’s witness, who had substantially brought out the. facts about Mrs. Lowe; and no material error is shown in the admission of that testimony.

The testimony by Griffith and Miss Frankie that said woman, Olivia Coleman, was a prostitute and had been in a house of prostitution at Corsicana, and what occurred with appellant there about her in that connection, was in no way objected to at the time the evidence was introduced. Its admission is complained of for the first time in the motion for new trial. It is too late to raise such questions for the first time by motion for new trial. They must be raised by bill of exception. Besides, in our opinion the evidence was clearly admissible.

Appellant’s motion in arrest of judgment, because of the two counts in the indictment under which this cause was submitted, presents no error. It was proper to charge as was done in this complaint and information. Cabiness v. State, 146 S. W. 937, and authorities therein cited.

We have carefully considered all the questions raised in this case, and in our opinion no reversible error whatever is pointed out. The judgment is therefore affirmed.  