Cosgrove v. State
Court of Criminal Appeals of Texas
The indictment was for adultery “with Ben Tucker, a man, the said Ben Tucker then and there being lawfully married to another person then living.” The proof failed to show that'Ben was or ever had been married, and, under a charge of the court, submitting the issue of fornication, appellant was found guilty of fornication. Upon the trial the State failed to prove, but the contrary was shown that Tucker was not a married man and had never been married.
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The indictment was for adultery “with Ben Tucker, a man, the said Ben Tucker then and there being lawfully married to another person then living.” The proof failed to show that'Ben was or ever had been married, and, under a charge of the court, submitting the issue of fornication, appellant was found guilty of fornication. Upon the trial the State failed to prove, but the contrary was shown that Tucker was not a married man and had never been married. The court refused the request of the defendant to instruct to acquit her, but in lieu thereof instructed that if the two lived together and had…
1Opinion of the Court
HURT, Presiding Judge.
Appellant was charged with adultery, and convicted of fornication. Counsel for appellant contends that a conviction for fornication cannot be had under an indictment for adultery, and especially under this indictment. It is well settled in criminal procedure at common law, in other States and in this State, that under an indictment for adultery, with the proper allegations, a conviction can be had, under proper evidence, for fornication. The question is not whether one offense includes another. It is a question of allegation. The legislature cannot, by enacting that a…
2Cited by4 opinions
- Garland v. StateCourt of Criminal Appeals of Texas · 1907
- Crumpton, Lindsey AlynCourt of Criminal Appeals of Texas · 2009
- Crumpton, Lindsey AlynCourt of Criminal Appeals of Texas · 2009
- Pena v. StateCourt of Criminal Appeals of Texas · 1904