The indictment charges “ that on, to wit, the first day of March in the year of our Lord eighteen hundred and seventy-six, in the county of Parker, state of *333Texas, and on divers times before and after said date, one Lovis Eutter, who was then and there a married woman (that is to say, she was then and there the wife of Charles Eutter), and Emp Fox, who was then and there a man, did unlawfully live together in a state of cohabitation, and did unlawfully live together in adultery, and did unlawfully there and then commit the crime of adultery, and that they did then and there, on divers times, unlawfully and carnally know each other, and did then and there, and for a long time before and after said date, live together and cohabit together,” etc.
In this case the appellant, Fox, was tried alone and convicted, and his punishment assessed at a fine of $100 ; and, after motion for new trial overruled, this appeal is taken.
Two propositions are urged in the brief of the appellant as reasons why the judgment should be reversed, and which may be stated thus :
First, that, to justify a conviction of this appellant, the proof should show that he knew, at the time the offense is alleged to have been committed, that the person with whom the adultery is alleged was a married woman ; and, secondly, that, by a marriage with the other person, after the commission of the offense, he became entitled to an acquittal.
And, in connection with this latter view of the case, we find in the record a bill of exceptions, as follows: “The defendant offered to introduce evidence of a valid marriage, subsequent to the decree of divorce between Eutter and this defendant and the void marriage of the 20th of February, and subsequent to the presentment of the indictment herein, by and between the same parties ; offering to prove the same by the witness F. M. Stanley and by the county clerk of said county, and return of license on file in said clerk’s office, which evidence was ruled out by the court, and not permitted to go to the jury; to which ruling the defendant’s counsel reserved their bill of exceptions.”
*334With reference to the first proposition, the statute provides “that every man and woman who shall live together in adultery * * * shall be punished,” etc.; and “it is sufficient to prove, in trials for living in adultery, that the parties cohabit together, and that one of them is married to some other person.” Penal Code, arts. 392, 393 (Pasc. Dig., arts. 2022, 2023).
It is the act of living together, and not the knowledge or intent, that constitutes the offense. When the statement of the act itself necessarily includes a knowledge of the illegality of the act, no averment of knowledge or bad intent is necessary. It is otherwise when guilty knowledge is a substantive ingredient of the offense. It has been held unnecessary in an indictment for adultery to allege a scienter. Under statutes the distinction has been taken that, when the guilty knowledge is part of the definition of the offense, it must be averred; but not otherwise. Whart. Cr. Law, sec. 297, and notes.
We hold, therefore, that in an indictment for living in adultery it is sufficient to allege the fact, and not necessary to charge a guilty knowledge upon the parties ; and, it not being necessary to aver such knowledge, it would be unnecessary to prove it; and in this case it is no objection to the conviction that it was not proved on the trial that this party knew at the time that the other party was the wife of another man. Besides, we think the circumstances proved on the trial that this party had knowledge of the fact, or at least had the means of informing himself at hand, if he deemed it a matter of any consequence to him.
The other proposition, that by procuring a divorce for the married party from her legal consort, and subsequent marriage, would constitute a defense to the charge, refutes itself. It not only admits the case, but fails to afford any excuse therefor. The most it could have done was to show contrition, and a disposition to make amends to the violated law, *335in mitigation of the penalty, if this were permissible; but it was no defense. In law the married woman remained the wife of her husband up to the time the matrimonial tie was severed by the decree of separation, if such was the case.
These views have been presented because of the earnestness with which these subjects have been urged by the appellant’s counsel. We might have excused ourselves from doing more than to note the fact that there is no assignment of error in the record, the case being a misdemeanor.
The charge in the indictment is supported by the evidence, and the judgment is affirmed.
Affirmed.