Conviction for fornication; punishment, a fine of $200.
Our attention is called to the fact that the complaint and information herein, in the second count thereof, same being the one upon which the conviction was had, charge that “Roy Roper, an unmarried man, * * * did then and there unlawfully have habitual carnal intercourse with Huida Roper, an unmarried woman.” There is no allegation that this was “without living together”. In all of the authorities known to us in this state it is held that where the parties are charged with adultery or fornication as a result of their habitual carnal intercourse with each other, it must be charged that the parties did not live together. The authorities are collated in Yates v. State, 84 Texas Crim. Rep., 590, 209 S. W., 407. This rule seems to have been adhered to since the rendition of the opinion in Collum v. State, 10 Texas App., 708. In view of the uniform holdings in this regard it is difficult to see why the state’s pleading should have been drawn as it was.
The judgment will be reversed and the prosecution ordered dismissed.
Reversed and prosecution ordered dismissed.