Goodwin v. State

• Decision Date: 04 June 1913
• Citation: 158 S.W. 274
• Parties: GOODWIN v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 274

GOODWIN v. STATE.

Court of Criminal Appeals of Texas.

June 4, 1913.

Appeal from Rains County Court; O. H. Rodes, Judge.

Georgia Goodwin was convicted of adultery, and she appeals. Affirmed.

J. W. Humphrey, of Point, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

From a conviction of appellant of adultery and a fine of $100 imposed she appeals.

The evidence was sufficient to sustain the conviction. Some time before the prosecution the grand jury indicted appellant and one R. P. Butler jointly for living in adultery. Prior to Butler's trial, appellant made a trade with the prosecuting officer that, if he would dismiss said case against her, she would testify fully on the trial of Butler. The state thereupon and before Butler's trial dismissed the case against her. When Butler was tried, "she went back" on her agreement, and refused to testify against him fully. Notwithstanding this, Butler was convicted. The state thereupon instituted this prosecution against her by complaint and information. She contends that the state was bound by its said agreement, and she could not thereafter be prosecuted. She made a motion to this effect, which the court overruled. In allowing appellant's bill to the overruling of her motion, the court qualified it by stating: "When Mrs. Goodwin was placed on witness stand in the Butler case, she claimed her privilege and refused to testify to any fact except that she was married to ____ Goodwin, and she understood he was then living. I overruled this motion because she refused to testify in the Butler case."

If she had carried out her agreement with the state and testified fully as she agreed on the trial of Butler, then the state would have been bound by said agreement, and could not thereafter have prosecuted her. But certainly the state was not bound by its agreement unless she carried out her agreement with it. As shown above, she refused so to do. This question was raised by appellant several ways. The court committed no error on this point.

The appellant contends, and raised the question in the lower court in different ways, that this conviction cannot stand because the state did not prove that appellant was lawfully married to another person then living. The state did not prove that she was married to another person then living, but did prove that said Butler was married to another person then living. In other words, appellant's contention is that under the allegations in said complaint the state had to prove that not only Butler was lawfully married to another person then living, but also had to prove that appellant was lawfully married to another person then living in order to sustain the conviction. Our statute making adultery an offense (P. C. art. 490) is: "Adultery is the living together and carnal intercourse with each other * * * of a man and woman when either is lawfully married to some other person." Article 492, on the same subject, is: "When the offense of adultery has been committed, both parties are guilty, although only one of them may be married." The information after the necessary formal allegations alleges that appellant on or about November 10, 1910, in Rains county, "did then and there unlawfully live together and have carnal intercourse with one R. P. Butler, the said R. P. Butler being then and there lawfully married to another person then living (and the said Georgia Goodwin being then and there lawfully married to another person then living), against the peace and dignity of the state."

Judge White, in section 405, p. 297, in his Annotated C. C. P., collates some of the authorities, and therein lays down therefrom the correct rule as follows: "Where several ways are set forth in the same statute by which an offense may be committed, and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged conjunctively in the same count." See Phillips v. State, 29 Tex. 233; Lancaster v. State, 43 Tex. 519; Berliner v. State, 6 Tex. App. 182; Copping v. State, 7 Tex. App. 61; Day v. State, 14 Tex. App. 26; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State, 30 Tex. App. 374, 17 S. W. 934; Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; State v. Smith, 24 Tex. 285; State v. Edmondson, 43 Tex. 162. See, also, section 383, p. 286, White's C. C. P. Mr. Bishop, in volume 1, § 434, of his New Criminal Procedure, says: "Some single offenses are of a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if not repugnant; and, at the trial, it will be established by proof of its commission by any one of them." Again, in section 436, he says: "A statute often makes punishable the doing of one thing, or another, or another, sometimes thus specifying a considerable number of things. Then by proper and ordinary construction a person who in one transaction does all violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction `and' where the statute has `or,' and it will not be double, and it will be established at the trial by proof of any one of them." As shown above by our adultery statute on this point, the other requisites being shown, adultery is committed in either one of three ways: First, when the man is lawfully married to some other person; second, when the woman is lawfully married to some other person; and third, when both are married to some other person—that is, the man to another woman and the woman to another man. And, as the statute states, "both parties are guilty, although only one of them may be married." And, as shown by the authorities above cited, the state will have made its case when it "be established at the trial by proof of any one of them."

Again, it is elementary in this state that unnecessary words in an indictment may and should be rejected as surplusage, and that redundant allegations and allegations which are in no manner necessary to a description of an offense, and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. Mayo v. State, 7 Tex. App. 342; Gordon v. State, 2 Tex. App. 154; Burke v. State, 5 Tex. App. 74; Hampton v. State, 5 Tex. App. 463; Smith v. State, 7 Tex. App. 382; Rivers v. State, 10 Tex. App. 177; Gibson v. State, 17 Tex. App. 574; Holden v. State, 18 Tex. App. 91; Moore v. State, 20 Tex. App. 275; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Waters v. State, 30 Tex. App. 284, 17 S. W. 411; McDaniel v. State, 32 Tex. Cr. R. 16, 21 S. W. 684, 23 S. W. 989; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751; Williams v. State, 35 Tex. Cr. R. 391, 33 S. W. 1080; Webb v. State, 36 Tex. Cr. R. 41, 35 S. W. 380; Mathews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W. 189; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110.

Mr. Branch, in his Texas Crim. Law, § 905, lays down the same rule in two separate paragraphs as follows: "If not...