
    KOGER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1. AdulteRT (§ 14) — Fornication (§ 9*) — SUEETCIENCY OE EVIDENCE.
    Evidence, on a trial for adultery and fornication, held insufficient to sustain a verdict of guilty.
    LKd. Note. — For other cases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dec. Dig. §' 14; Fornication, Cent. Dig. § 7; Dec. Dig. § 9.]
    2.Criminal Daw (§ 829) — Instructions— Requests Covered.
    Where the evidence was wholly circumstantial, and the court gave a full and fair charge, and charged fully on circumstantial evidence, an instruction that suspicious circumstances and familiarity were insufficient to prove adultery or fornication by habitual carnal intercourse, without actual proof of an a.ct of carnal intercourse, was properly refused.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. § 829.]
    3.Criminal Daw (§ 450) — Fornication-Evidence — Admissibility.
    On a trial for adultery and fornication with W., testimony that a witness -talked with W. on the street, and that a few days later accused shook his finger at him and said, “Don’t do that any more,” without further explanation, was admissible; but the witness’ further testimony that he suspected accused referred to his talk with W. should have been excluded.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1036; Dec. Dig. § 450.]
    4. Ceiminal Daw (§ 1202) — Evidence—For-. mer Conviction.
    Under Fen. Code 1911, art. 1618 et seq., relative to increased punishment for second and subsequent convictions for the same offense, where an information for adultery and fornication charged a former conviction for fornication, such former judgment of conviction on a plea of guilty was admissible; but, it not appearing, whether accused pleaded guilty to adultery or fornication, the information should have been introduced to identify the offense of which he was convicted.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3260-3265; Dec. Dig. § 1202.]
    5. Criminal Daw (§ 1202) — Argument oe Prosecuting Attorney.
    Where, on a trial for fornication, a former judgment of conviction on a plea of guilty, for fornication with the same person, was introduced as a basis for increased punishment, the county attorney could not properly argue that the plea of guilty might be considered in determining accused’s guilt.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3260-3265; Dec. Dig. § 1202.]
    Prendergast, P. J., dissenting in part.
    
      Appeal from' Ellis 'County Court; J. C. Lumpkins, Judge.
    Fred Koger was convicted of an offense, and lie appeals.
    Reversed and remanded.
    W. H. Fears, of Waxahachie, 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
    
   PRENJDERGAST, P. J.

The complaint and information is in several counts; some charging adultery in that the woman was married and appellant was not married, and in another charging fornication in that both were unmarried. And, for the purpose of authorizing the jury to find double punishment, it was alleged that previously appellant had been convicted of fornication with said woman.

Appellant earnestly contends that the evidence is insufficient to sustain the verdict. We will therefore give substantially the testimony, which was as follows: The state proved by Armón Yates, deputy sheriff, Jim Ham, a constable, and Sam Bass, the city night watchman, that they knew defendant Fred Koger. That he was a young man 19 or 20 years old, who resided with his father in Waxahachie. That they knew Arnice Watson, a woman who was a servant in the family of Dr. Ferguson, and lived in a servant house on his place at West End, and about one mile from the courthouse. That they had information that Fred Koger was going to see Arnice' Watson, and in December, 1912, they watched the house of Arnice Watson some five or six nights. That they hid themselves near the barn and close to the house occupied by said Arnice Watson. That in December, 1912, they saw defendant twice come to the house of Arnice Watson. The first time he was on horse back, and did not get off of the horse; that Arnice Watson went out to the fence and they talked awhile.; that defendant then reached over the fence and hugged and kissed Arnice Watson; that some five or six nights later when they got out there defendant was standing in front of the door of the house and Arnice Watson was standing in the door of her house; that they talked a few minutes, and defendant walked off and went' down the railroad toward town. That again in January, 1913, they watched the house some five or six nights and saw defendant again go to the house. That on each occasion he was on horseback, and did not get off his horse. That once he reached over the fence and hugged and kissed Arnice Watson; then he rode off towards town. That they watched the house of Arnice Watson many nights, but did not see defendant any more until Sunday night, the 30th day of March, 1913, when said witnesses, in company with sheriff A. W. Wilson, went out to the house of Arnice Watson. Jim Ham went to a window, looked in, saw Arnice Watson in bed; defendant sitting on the side of the bed talking to her. That there was also another woman in the room.

That the woman left, and pretty soon defendant patted Arnice Watson on the breast, kissed her, and at once went out the door, where he was arrested. Jim Ham testifies that, while 'he was looking in the window, he ■found out from the conversation that Arnice Watson was sick. Sheriff Wilson testified that he filed the complaint on which defendant was arrested. They all testified that, after defendant was arrested, he said he did not want to go to jail, and asked that the sheriff take him to his father’s home that he might make bond; that the sheriff refused, saying he was going to take him to jail; that on the way defendant broke loose and ran off, but they went right on to his father’s home, and in a few minutes defendant came, and they arrested him, and would not let him go into the house to see his father, but took him to jail. Jim Ham testified he heard Arnice Watson was married. Sam Bass testified he had, known her several years, and no one lived with her as her husband during that time. Buddy Quaite testified that about six months before, one dark night, he was driving a ’car and saw defendant and Arnice Watson in a buggy; that he' knew them; and that was the only time he ever saw them together. Robert Phillips testified that one night, about three months before, he passed a man and a woman in a buggy. He could not say as to the woman, but he believed the man was Fred Koger. Tom Stewart testified that one evening about dusk he met Fred Koger and Arnice Watson; they were in a buggy. E. P. Hawkins testified: Some five or six months before, he on several occasions saw Fred Koger going towards West End; that the places he met defendant was from three-quarters to a mile from Dr. Ferguson’s, etc.., where Arnice Watson lived. Henry Snipes testified: That something over a year prior he met Arnice Watson on the street, and they stopped and talked awhile; that several days afterward defendant passed him and shook his finger at him and said, “Don’t do that any more.” Witness asked him, “Don’t do what any more?” That defendant replied, “A word to the wise is sufficient.” Witness testified he did not know what defendant was talking about, but suspicioned he referred to his talk with Arnice Watson. The state also introduced a judgment of the county court of Ellis county, Tex., in which it appeared that on the 14th day of September, 1911, on a charge of adultery and fornication pending in said court, defendant entered a plea of guilty and was fined $100, but it does not appear whether he pleaded guilty to adultery or fornication. We are inclined to believe that the evidence in this case is insufficient, as contended by appellant, to sustain the verdict.

The court gave a full and fair charge in this case, and, among others, a full charge on circumstantial evidence. . The court did not err, therefore, in refusing appellant’s first •special charge to the effect that suspicious-circumstances and familiarity are not sufficient to prove adultery or fornication by habitual carnal intercourse without actual proof of an act of carnal intercourse. Carnal intercouse between all persons is indulged as secretly and as privately as possible. Such act must generally, if not always, be proved by circumstantial evidence, and, while suspicious circumstances and familiarity alone might not be sufficient, such charge should not have been given in this case.

While it was admissible for the witness Henry Snipes to testify to what occurred and was said by appellant to him, and that a few days prior thereto he had a short talk with the woman Arnice Watson on the streets of Waxahachie, it was improper, and the witness should not have been permitted to testify that he thought appellant’s said talk to him referred to his (the witness’) talk with Arnice Watson. His thought or suspicion should not have been admitted. The jury could pass upon that question from the other testimony of the witness.

The court did not err in permitting the testimony of Robert Phillips, objected to and shown by appellant’s fourth bill of exceptions. The testimony was admissible. The weight of it was for the jury.

The former judgment of conviction of appellant was admissible in evidence, but upon another trial, in order to show that it was a repetition of the same offense, the state should introduce the information upon which said judgment was based, so as to clearly identify for what offense he was convicted. Article 1618 et. seq., P. O.; Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S. W. 853.

The writer believes the county attorney was justified and could properly argue that if the former conviction was for the same offense as this, and appellant pleaded guilty thereto, the jury'could consider appellant’s confession or plea of guilty in that case and the judgment thereon in connection with the other facts and circumstances of this case. His former confession and conviction, if for the same offense, might cut both ways, however. The state could contend, as it did, as shown by the argument of the county attorney. Appellant could contend that, having been convicted before and punished therefor, it would show or tend to show that he would not again be guilty of the same offense and thereby incur double punishment, and that, instead of being against him, together with the other facts and circumstances, it was for him to show he was not guilty in this case. These matters were matters of argument before the jury. The jury could pass upon the question and take either side of the deduction, and it would be for or against him, as they might determine ; they passing on the weight to be given to the testimony in that matter as all others.

It is only by reason of the fact of appellant’s plea of guilty or confession in the former case that such comment was permissible. A mere conviction of him without any plea of guilty or confession could not so be commented upon. The court, however, is of opinion this was not permissible, and on another trial it should not be permitted. There is nothing else requiring discussion.

For the errors above pointed out, the judgment is reversed, and the cause remanded.  