Walding v. State, 19879.
| Decision Date | 02 November 1938 |
| Docket Number | No. 19879.,19879. |
| Citation | 120 S.W.2d 1052 |
| Parties | WALDING v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Mitchell County Court; A. F. King, Judge.
Wood Walding was convicted of adultery, and he appeals.
Reversed and remanded.
G. B Harness and R. H. Ratliff, both of Colorado, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The conviction is for adultery; the punishment assessed is a fine of $100.
Appellant's first contention is that the evidence is insufficient to justify and sustain his conviction under the charge in the complaint and information wherein it is averred that Wood Walding, a married man, and Kate Goodrich, a married woman, did, on or about the 10th day of August, 1937, commit adultery by then and there having habitual carnal intercourse without living together.
In order to meet the allegation in the complaint and information, it was necessary that the evidence show (1) that each of the parties was married to another and (2) that they had habitual sexual intercourse with each other without living together. The state failed to prove a single act of sexual intercourse between the parties. The only circumstances which the evidence established was that appellant visited at the Goodrich home; that at times he or she would give the son of Mrs. Goodrich money to go to the picture show while they remained at home and at times they would go to a restaurant together, accompanied, sometimes, by her husband. That at one time appellant inquired of the owner of a tourist camp the price of a cottage and thereafter Mrs. Goodrich rented a cottage and moved in. That appellant would frequently come there in his car to see her, but he never got out and entered her apartment, nor did he ever take her for a ride.
These may be suspicious circumstances, but they are not sufficient to prove habitual sexual intercourse. The state, no doubt, realized this and therefore offered in evidence an ex parte affidavit by Mrs. Goodrich to the effect that she and appellant had engaged in sexual intercourse. Appellant objected to the introduction of the affidavit on various grounds, among them that it was an invasion of his constitutional right to be confronted with the witness. The court overruled the objection and appellant excepted.
The ex parte affidavit was not admissible in evidence over appellant's timely objections, nor was the judgment of conviction of Mrs. Goodrich who...
To continue reading
Request your trial
-
Long v. State
...use of written statements when there was no suggestion that the witness was unavailable. Eleven years later in Walding v. State, 135 Tex.Cr.R. 430, 120 S.W.2d 1052 (1938) it was decided that because of the defendant's right of confrontation the State could not prove the essential elements o......
-
Humphrey v. McCotter
...Tex.Jur.3d Affidavits § 2 (1979). See McAfee v. Shirley, 140 S.W.2d 932 (Tex. Civ.App. — Amarillo 1940); see also Walding v. State, 135 Tex.Crim. 430, 120 S.W.2d 1052 (1938); Halliday v. Lambright, 29 Tex.Civ.App. 226, 68 S.W. 712 (San Antonio 1902). The affidavit in question does not meet ......
-
Paine v. People
... ... client was Mr. Burchett, and he was in the state legislature, ... and he asked me to represent Mr. Burchett, to try to get a ... bond, and Mr ... the recent cases of LeRoy v. Government of Canal Zone, 5 ... Cir., 81 F.2d 914; Walding v. State, 135 ... Tex.Crim. 430, 120 S.W.2d 1052; Giles v. State, 109 ... Tex.Crim. 234, 4 S.W.2d ... ...
-
McClure v. State, 60906
...State, 109 Tex.Cr.R. 234, 4 S.W.2d 66; Bell v. State, 33 Tex.Cr.R. 163, 25 S.W. 769; Harper v. State, 11 Tex.App. 1; Walding V. State, 135 Tex.Cr.R. 430, 120 S.W.2d 1052. Cited in the notes under the sections in the text books will be found many cases from other jurisdictions supporting the......