This conviction was for the offense of fornication and punishment fixed at a fine of $250.
The appeal was dismissed but for reasons shown the motion for rehearing is reinstated.
The offense is defined by our statute, article 494, as follows: "`Fornication' is the living together and carnal intercourse with each other, *Page 17 or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried."
The information charged in separate counts each phase of the offense, namely: first, while living together; second, without living together. The first count was abandoned and the second count only was submitted to the jury. The effect of this was to leave the case in the status as though only the second count had been embraced in the information. Branch's Ann. P.C., p. 232; Betts v. State, 57 Tex.Crim. Rep.. There was direct testimony to acts of intercourse and circumstances to show they were habitual. The parties were unmarried and there was evidence that they were not living together. The evidence, in our judgment, is sufficient to sustain the finding of guilty under the second count of the information.
Appellant, by special charges, sought to have the court define the term "while living together," and complains of failure to charge upon the first count of the information which contained that term. These criticisms are not well founded for the reason that the first count of the information was abandoned and the State, in effect, elected to prosecute under the second count. Weathersby v. State, 1 Texas Crim. App., 646. The cases cited by appellant — Bird v. State, 27 Texas Crim. App., 635, and Thomas v. State, 28 Texas Crim. App., 300, 12 S.W. Rep., 1098 — are not in opposition to the correctness of the procedure followed. They go to the point that an indictment charging fornication while living together is not sustained by proof of habitual carnal intercourse while not living together. This is a sound proposition but not applicable to this case. The law was correctly submitted in the court's charge applicable to the second count. The proof sustains the finding and there are no errors found in the record.
The order dismissing the case is set aside and the judgment of the lower court is affirmed.
Affirmed.