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idea of criminality is so far a necessary ingredient of everything which is called a contempt that every contempt may be said to be a criminal contempt. It is necessary to consider this in order to understand what the courts mean when they say, as they do, without discriminating as to the kind of contempt, that contempts are crimes or misdemeanors, and that proceedings to punish contempts are criminal proceedings."

From the foregoing discussion, we think it apparent,-1. That the justice of the peace had statutory authority in this case to impose the fine of $39.19 for the benefit of the plaintiff in the sequestration suit; 2. That said fine was also legally imposed as for a contempt of court, the officer having failed and refused to execute the process of the court: Crow v. State, 24 Tex. 12; 3. That in addition to the fine, the court had also the authority to order and commit the officer to imprisonment until the fine and costs were paid.

The only remaining question for our consideration is, whether the judgment, the order, and the commitment issued by the justice are valid and sufficient to authorize this imprisonment for said contempt.

It is well settled that, to justify the imprisonment of a party adjudged to be in contempt, an order or warrant of commitment of some sort is necessary: Ex parte Burford, 1 Cranch C. C. 456. "As to whether the order should contain a statement of the facts found in the proceedings prior to the commitment, the cases are in conflict. Thus in New York it is held that it must designate the particular misconduct of which the defendant is convicted. And in California it is laid down that it must state specially all the material facts on which the action of the court is predicated; and where the commitment is for refusing to obey an order of the court, it must set forth that it is in the power of the person to comply with the order. Again, it has been said that a warrant to commit for contempt issued by a limited authority should show that the contempt fell within the limits of that authority; but that when issued by a superior court of record, the adjudication of contempt may be general, and the particular circumstances need not be set out; that in such a case jurisdiction and regularity will be presumed. Again, it is held in New York that the process of commitment by a surrogate against a guardian for contempt need not recite all the facts necessary to confer jurisdiction. It should show on its face

that it issued in a proceeding wherein the surrogate had jurisdiction; what was the cause of commitment; what act or duty must be performed, and what expenses paid": Rapalje on Contempts, sec. 129.

"Either the order or judgment finding the defendant guilty of contempt in disobeying the command of the court, or the order of commitment for such contempt, must recite that it was in the defendant's power to perform the required act, or else the commitment will be void": Rapalje on Contempts, sec. 137; see also 5 Crim. Law Mag., p. 520, sec. 40; Fischer v. Langbein, 103 N. Y. 84.

Under these rules, with regard to what is necessary to be stated in the judgment and order or writ of commitment in such cases of constructive contempt as the one in hand, we must hold that an inspection both of the judgment and of the writ of commitment show them each to be wanting in the essentially requisite allegation that it was in the power of the defendant, Robertson, to perform the act required of him by the writ of sequestration issued to him for execution, to wit, that it was in his power to execute the same. Unless this matter sufficiently appears, it is beyond the jurisdiction of the court to render a judgment for such contempt, and, it being essential to the validity of the judgment, the judgment itself should recite the fact. Failing to recite this essential fact, the judgment is void.

As to the order or writ of commitment, it is open to the further objection that upon its face it shows the imposition of a fine as for a criminal contempt which, ostensibly, the court had no authority to inflict, and fails to recite all the facts necessary to confer jurisdiction upon the court to inflict punishment for a constructive contempt in the failure and refusal of the officer to obey the commands of the court.

Because the judgment finding the officer guilty of contempt, and the writ of commitment ordering his imprisonment are, each and both, void in law, the applicant, W. M. Robertson, is hereby released and discharged from further detention in custody on account of the same, and his discharge is ordered accordingly.

CONTEMPT-POWER OF COURTS TO PUNISH FOR: See monographic note to Clark v. People, 12 Am. Dec. 178-186; State v. Doty, 32 N. J. L. 403; 90 Am. Dec. 671, and note; State v. Galloway, 5 Col. 326; 98 Am. Dec. 404, and note; Williamson's Case, 26 Pa. St. 9; 67 Am. Dec. 374; Ex parte Grace, 12 Iowa, 208; 79 Am. Dec. 529; Howard v. Durand, 36 Ga. 346; 91 Ain. Dec.

767; People v. Wilson, 64 Ill. 195; 16 Am. Rep. 528; Middlebrook v. State, 43 Conn. 257; 21 Am. Rep. 650; Rhinehart v. Lance, 43 N. J. L. 311; 39 Am. Rep. 592; State v. Woodfin, 5 Ired. 199; 42 Am. Dec. 161, and note; Neel v. State, 9 Ark. 259; Ex parte Adams, 25 Miss. 883; 59 Am. Dec. 234; Respublica v. Passmore, 3 Yeates, 441; 2 Am. Dec. 388, and note. The power to punish for a violation of its orders or judgments is inherent in every court having common-law jurisdiction, without any express statutory authority: Kregel v. Bartling, 23 Neb. 848. But a court loses jurisdiction to punish for a contempt committed in its presence when it delays to take any proceedings in the matter for a period of fifty days after the alleged commission of the contempt: In re Foote, 76 Cal. 543.

CONTEMPT. There are two kinds of contempt, direct and constructive; direct contempt is committed in the presence of the court while sitting judicially; constructive contempt is that which tends to obstruct and embarrass the court, though not committed in the court's presence: People v. Wilson, 64 Ill. 195; 16 Am. Rep. 528; State v. Frew, 24 W. Va. 416; 49 Am. Rep. 257. In a case of civil contempt, -as when a defendant in a civil action is ordered by the court to pay money to the plaintiff, and is committed until he shall have paid it, the prisoner is in custody as under an execution; In re Wilson, 75 Cal. 580. A contempt is generally in the nature of a criminal offense, and the proceeding for its punishment is criminal in its character: State v. Irwin, 30 W. Va. 404.

BIRD V. STATE.

(27 TEXAS APPEALS, 635.]

CRIMINAL LAW. — ADULTERY, under the Texas statute (Penal Code, articles 333-337), may be committed in two ways: 1. By the parties living together and having carnal intercourse with each other; 2. By the parties having habitual carnal intercourse with each other without living together. To convict under the first way, it must be proved that the parties lived, dwelt, and resided together, and a single act of carnal intercourse is sufficient, if they so live. To convict under the second way, the proof must show that the carnal intercourse was habitual. CRIMINAL LAW ADULTERY. "LIVING TOGETHER," as used in articles 333-337 of the Texas Penal Code defining adultery, means that the parties must reside together; that is, dwell and abide together in the same habitation as a common or joint residing-place.

CONVICTION for adultery. Defendant rented a house, furnished it, and supplied it with groceries, representing that he rented it for other persons. The house was then occupied by Ida Smith, defendant's co-defendant. Defendant did not live in the house, but it was proved that he frequently entered the house at night, and left the next day; was seen on the premises but partially dressed, and that he was a married man. Graham and McMurray, for the appellant.

W. L. Davidson, assistant attorney-general, for the state.

WILLSON, J. Two modes of committing the crimes of adultery and fornication are prescribed by the Penal Code of this state: 1. By the parties living together and having carnal intercourse with each other; 2. By the parties having habitual carnal intercourse with each other without living together: Pen. Code, arts. 333-337. The articles cited became law upon the adoption of the revised code, and they changed materially the statutes then in force relating to said offenses, and the changes made rendered inapplicable some rules and principles announced in decisions made under the former statutes: Collum v. State, 10 Tex. App. 708.

In the case before us, the defendant stands convicted of adultery, committed in the first mode named in article 333, by living together with one Ida Smith, and having carnal intercourse with her. To support such conviction, it was essential that the state should prove, not only that the parties had carnal intercourse with each other, but also that they lived together. A "living together" is not defined by the code. These words are, therefore, "to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed": Pen. Code, art. 10. Guided by this rule of construction, we are of the opinion that the term "living together," as used in articles 333 and 337 of the Penal Code, means that the parties must dwell or reside together,abide together in the same habitation as a common or joint residing-place. This interpretation of the term is more restricted than has been given to it in decisions made under the former statutes: Swancoat v. State, 4 Tex. App. 105; Parks v. State, 4 Id. 134. But the former statutes prescribed but one mode of committing adultery, which was by the parties living together and cohabiting with each other. Carnal intercourse with each other, however frequent, did not constitute the crime, unless the parties in some sort of way lived together. But as the law now is, habitual carnal intercourse, without living together, is adultery. It is plain to our minds, therefore, that in providing the two different modes of committing adultery, it was intended that the words "living together" should mean what we have above construed them to mean, and that, where the parties did not actually live, that is, dwell, reside together, they would be still guilty of adultery by having habitual carnal intercourse with each other. But unless such intercourse was habitual, the parties not living together,

adultery would not be committed; while, on the other hand, a single act of carnal intercourse, if the parties at the time lived together, would, under the law now in force, constitute the crime.

In this case, we do not think the evidence supports the conviction, in that it does not show that the parties lived together, within the meaning of that term. If the defendant had been prosecuted for having habitual carnal intercourse with the woman, without living with her, the evidence would sustain a conviction, but he was not prosecuted or convicted for that kind of adultery, and we cannot sustain his conviction for committing the crime in one mode, when the evidence shows that he did not commit it in that mode, although he may have committed it in the other mode.

With respect to the rulings and charge of the court, we have found no error. Because the conviction is not supported by the evidence, the judgment is reversed, and the cause is remanded.

ADULTERY-WHAT IS, AND WHAT CONSTITUTES THE CRIME: See monographic note to Commonwealth v. Call, 32 Am. Dec. 289, 290; Smith v. Commonwealth, 54 Pa. St. 209; 93 Am. Dec. 686; State v. Weatherby, 43 Me. 258; 69 Am. Dec. 59; Helfrich v. Commonwealth, 33 Pa. St. 68; 75 Am. Dec. 579. Conviction for unlawful cohabitation in adultery cannot be sustained, where the evidence simply shows that the convicted parties lived together under the same roof as master and servant, and that there were occasional instances of illicit intercourse between them: Carotti v. State, 42 Miss. 334; 97 Am. Dec. 465, and note; note to Badiford v. State, ante, p. 20.

MCDADE V. STATE.

127 TEXAS APPEALS, 641.]

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CRIMINAL LAW-MURDER-MANSLAUGHTER THREATS. -The mere fact of being encountered or overtaken in the street or highway by one who has threatened another's life some months before, without any act indicative of an intention of then carrying such threats into execution, is not adequate cause to excite such anger, rage, sudden resentment, or terror as renders the mind incapable of cool reflection, so as to reduce a killing from murder to manslaughter; even if an agreement existed between the accused and deceased that the latter would not carry his rifle in his hands, or otherwise than attached to his saddle in a scabbard, or in his buggy, and that any other mode of carrying the gun might be considered a declaration of hostility, and it is shown that when the deceased was killed he was sitting on his horse, with the gun across his lap, in violation of his contract, but that he made no hostile demonstration with it, even after the attack was made on him.

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