State v. Foster

Decision Date31 January 1869
Citation31 Tex. 578
CourtTexas Supreme Court

The 392d article of the penal code declares the punishment for fornication. But articles 293, 294, and 295 are confined to adultery alone; and fornication is nowhere defined in the code. Pas. Dig. arts. 2022-2025.

No person can be punished unless the offense is defined and the penalty affixed by the written law of the state. Pas. Dig. art. 1605.

APPEAL from Cameron. The case was tried before Hon. ELISHA BASSE, one of the district judges.

On the 31st of March, 1868, the appellee was indicted in the district court of Cameron county for fornication.

On the 4th of April the defendant filed a motion to quash the indictment, upon the ground that it did not charge the defendant with an offense known to the law.

The court sustained the motion and quashed the indictment, and the state appealed; and the single question determined was, did the court err in quashing the bill?

E. B. Turner, Attorney General, for the state. Adultery is defined by law. Pas. Dig. art. 2024. Article 2023 provides that persons guilty of adultery or fornication shall be punished, etc. But for articles 1603 and 1605 there would be no doubt, but I do not feel it my duty to urge the reversal of the judgment of the court below.

Israel B. Bigelow, for appellee, cited the same articles, and insisted that the offense is not defined in the code.


An indictment for simple fornication does not lie under the penal code of Texas. The code prescribes that every offense must be defined before it is punishable under the penal laws of the state. A mixed offense of adultery and fornication is defined by the statute, for which each of the parties may be held amenable to the law, and receive the infliction of its penalties. But the definition of this mixed offense is, that the parties must live together in a state of cohabitation. The several provisions of the statute show clearly that the living together in such a state was the specific offense designed to be punished. This is the offense defined a adultery by the statute. The moral offense of fornication is not defined by the code. And it is declared by the code, in Pas. Dig. art. 1605, “no person shall be punished for any act or omission, as a penal offense, unless the same is expressly defined,” etc. Therefore the indictment, which was for simple fornication, was properly quashed by the court, and the judgment is


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4 cases
  • Queen Ins. Co. v. State
    • United States
    • Texas Supreme Court
    • December 14, 1893
    ...was inoperative. Johnson v. State, 4 Tex. App. 63; Wolff v. State, 6 Tex. App. 195; Rogers v. State, 8 Tex. App. 401. See, also, State v. Foster, 31 Tex. 578. That provision was repealed by the Revised Statutes, which adopted in its stead the amended article 3, hereinbefore quoted. But in F......
  • International & G. N. Ry. Co. v. Mallard
    • United States
    • Texas Supreme Court
    • December 10, 1925 due process — and therefore void, whether it be regarded as a criminal law in the strict sense or a remedial enactment. State v. Foster, 31 Tex. 578; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Cogdell v. State (Tex. Cr. App.) 193 S. W. 675; Russell v. State,......
  • Clark v. State
    • United States
    • Texas Supreme Court
    • January 31, 1869
  • State v. Rahl
    • United States
    • Texas Supreme Court
    • January 1, 1870
    ...Tex. 76THE STATEv.P. RAHL AND ANOTHER.Supreme Court of Texas.1870. OPINION TEXT STARTS HERE 1. The case of The State v. Foster, 31 Tex. 578, cited and approved--holding that fornication is not an offense known to or provided for by the laws of this state. APPEAL from Calhoun. Tried below be......

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