The State v. John Foster, 31 Tex. 578

Lindsay, J. —An indictment for simple fornication does not lie under the Penal Code of Texas. The code prescribes that every offense must be defined before it is punishable under the penal laws of the state. A mixed offense of adultery and fornication is defined by the statute, for which each of the parties may be held amenable to the law, and receive the infliction of its penalties. But the definition of this mixed offense is, that the parties must live together in a state of cohabitation.

The several provisions of the statute show clearly that the living together in such a state was the specific offense designed to be punished. This is the offense defined as adultery by the statute. The moral offense of fornication is not defined by the code. And it is declared by the code, in Paschal’s Digest,

article 1605, “no person shall be punished for any act or omission, as a penal offense, unless the same is expressly defined,” &c. Therefore the indictment, which was for simple fornication, was properly quashed by the court, and the judgment is Affirmed.