London McKnight and Lizzie Davis were convicted under an indictment charging them with living together in a state of adultery. The charging part of the indictment is as follows : “ That one London McKnight and one Lizzie Davis, late of said county, in the county of Ellis, in said State, on the fifteenth day of March, in the year of our Lord one thousand eight hundred and seventy-seven, with force and arms, unlawfully did then and there live together in a state of adultery, she, the said Lizzie Davis, being then and there legally and lawfully the wife of one Alex. Davis, and was then and there legally married to the said Alex. Davis ; and the said Lizzie and the said London did then and there cohabit together, and live together in a state of adultery and cohabitation, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”
The first error assigned relates to the admission of certain evidence, over the exceptions of defendants. On the trial of this cause, the State’s witness Cantrell testified to seeing the defendants in the cabin together, alone, between sundown and dark, McKnight lying on a pallet on the floor, and Lizzie rising up and moving from near the pallet towards the fireplace, when witness opened the door. He could not say whether she was getting up from the floor or from a seat of some sort. Witness was then asked by the State’s counsel if the conduct or the situation of the defendants caused him to suspect them of carnal intimacy; and the defendant objected to the testimony thus sought, because the State has no right to put in evidence the conclusions, *163inferences, or suspicions of the witness. The objection was overruled by the court, and the witness answered that the conduct did cause him to suspicion them of carnal intercourse; that the conduct alone would have caused such suspicions, but that the suspicion was made stronger by what he had heard of before that; and to the ruling of the court in admitting this testimony the defendant excepted.
It is a general rule of law that witnesses must only state facts, and that the jury are to draw the inferences and conclusions from the facts given in evidence. We believe that the court erred in allowing the witness Cantrell to state what impressions were made upon his mind by the conduct of the defendants. A judgment, even in a criminal case, will not be reversed for immaterial errors. In such cases, however, courts will rarely presume that the particular evidence which had been wrongfully admitted could have no influence on the deliberations of the jury. Whart. Cr. Law,, sect. 3090, and authorities there cited.
The court did not err, in its charge to the jury, in telling-them, if they “ found from the evidence that the defendant. Lizzie Davis was married to Alex. Davis, or lived with Alex. Davis as his wife, after the manner of slaves, and that she lived with Alex. Davis, as his wife, from 1864 to> the 15th of August, A. D. 1870, and was living with said Alex. Davis, as his wife, at the time the offence is charged in said indictment, they are deemed to be, to all intents and purposes, in law, legally married.” Const. 1869, art. 12, sect. 27 (2 Pasc. Dig.).
We deem it unnecessary to notice the other portions of the charge of the court which are excepted to by the defendants, further than to say that, while it is clear to our minds the statute under which the defendants were indicted does not intend to punish a single or occasional act of criminal intercourse, but only those “ who shall live together in adultery,” we think the charge, taken as a *164whole, correctly stated the law of the case on this point. Parks v. The State, 4 Texas Ct. App. 134; Morrill v. The State, 5 Texas Ct. App. 447.
The judgment is reversed and the cause remanded.' Reversed and remanded.