Funderburg v. State
| Decision Date | 21 May 1887 |
| Citation | 5 S.W. 244 |
| Parties | FUNDERBURG v. STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Mrs. S. J. Jackson, the sister of the appellant, and the wife of her alleged paramour, testified for the state, in substance, that often just before the date alleged in the indictment, she saw her husband leave her room at night, and go into the room of appellant. She followed him into said room on the night alleged, and found him and accused in flagrante delicto in the latter's bed. Prior to that time, in Bell county, Texas, the witness often saw accused and witness' husband kiss each other, and on one occasion surprised the accused sitting in her (witness') husband's lap.
Lockett & Lockett, for appellant. Asst. Atty. Gen. Davidson, for the State.
The appellant was convicted under an indictment charging her with adultery with one James Jackson. Upon the trial the state was permitted to prove, over objection, acts occurring beyond the limits of Bosque county, and subsequent to the filing of the indictment. Under the peculiar facts of this case, we are of opinion that there was no error in this.
Bearing directly upon these acts and conduct of appellant and Jackson, the court was requested to instruct the jury that "the venue in this case is laid in Bosque county, and you will not consider the evidence before you of acts in other counties for the purpose of determining the defendant's guilt in Bosque county." While this charge is not strictly correct, it clearly called to the attention of the court the proper rule of law applicable to that portion of the evidence. In corroboration of the witnesses for the state, these subsequent acts, though occurring in other counties, may be considered. But, certainly, appellant should not be convicted in Bosque county for adulterous acts committed in another county; and the jury should have been so instructed.
We are therefore of opinion that the court should have framed and given an appropriate charge, its attention having been pertinently called to the question by the special instruction asked.
1. Reported by Messrs. Jackson & Jackson, official reporters of the Texas court of appeals.
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