The offense in this case, to wit, “adultery,” is charged to have been committed on the 20th day of April, 1879, and at divers other times before and after that time. The indictment was filed the 18th day of June, 1879, before our Revised Penal Code went into operation. On the trial the judge charged the jury the law in accordance with the definition of the offense as given in art. 333, Penal Code, instead of the law as in force when the offense was committed. Pasch. Dig. art. 2024. Under previous decisions, however, there is really but little if any difference in the construction placed upon the old law and the statute as at present existing. Swancoat v. State, 4 Texas Ct. App. 105; Parks v. State, 4 Texas Ct. App. 134; Merrill v. State, 5 Texas Ct. App. 447.
But two witnesses were examined, the mother of the girl with whom the adultery was alleged to have been committed, and the girl herself. The girl, who was in law a partieeps criminis, as such should' have been corroborated by other testimony tending to establish the guilt of defendant. In our opinion this was not sufficiently done. The girl’s mother testified to nothing corroborative in the slightest degree, save that defendant stayed at her house *406several times with his wife, who was also her daughter; that all the parties slept in the same room—there being but one room to the house; defendant and his wife always going to bed together; and that the girl became pregnant and had a child. On the other hand she also avers that a Mr. Morning, who had since left the country, and Bud Lambert had both been about her house “some during the year 1879,”—though she did not know that either of them had ever slept with her daughter. The girl swears positively to four or five separate and distinct occasions upon which defendant had obtained knowledge of her person,—-each time at night and on her bed in which her brother was sleeping with her, and in the same room where her mother and defendant’s wife, her sister, were also sleeping, and that each and every time the act was committed by force and against her consent. The fact that the girl had been indulging in illicit commerce with some man is incontrovertibly established by the fact that a child was born of her; but that its paternity is attributable to defendant’s agency, or his adulterous connection with her even, is not established by corroborative evidence, independent of her own statement, sufficient in our opinion to warrant the conclusion of his guilt to a moral certainty and against any other reasonable hypothesis.
The evidence not being sufficient to support the verdict and judgment, the court below erred in not granting a new trial; and the judgment is reversed and cause remanded.
Reversed and remanded.