Stewart v. State , 35 Tex. Crim. 174 ( 1895 )

Appellant in this case was tried in the court below on a charge of incest, was convicted, and his punishment assessed at five years' confinement in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal. The appellant in this case filed a plea of former jeopardy. Said plea set up all indictment for rape by the appellant on the person of the prosecutrix in this case, and a verdict and judgment of acquittal in said cause. Appellant alleged that they were one and the same transaction, and set the same up in bar of this prosecution. On motion of the District Attorney the court struck out said plea, to which action of the court appellant excepted. In this there was no error. While the testimony might show that it was one and the same transaction, yet the offenses are distinct, and each requires a different character of proof. The same person might be innocent of the charge of rape, while in the same transaction he might be guilty of incest, and an acquittal for the rape does not bar a prosecution for the incest. There was no error in the delay of the court in sending for witnesses to prove the divorce of appellant from his former wife, of which appellant can Complain. Appellant insists that the court committed an error in allowing the witness, Dean, to state before the jury that he had examined the index book and records of the District Court of Henderson County, Texas, and found the case indexed as follows: "W. Tannehill v. Annie Tannehill. Judgment. Minute Book H." This, in our opinion, was not the best evidence, but a certified copy of the entry, under the hand and seal of the District Clerk of Henderson County, should have been produced. Appellant also assigns as error the fact that the court permitted the District Attorney on cross-examination of the wife of appellant to ask her if she did not, at a certain time and place named, state to J.W. Taylor, in the presence of J.N. Gallagher, that her daughter, Mamie, had told her of the way the appellant had treated her. This testimony, we think, was rendered legitimate on cross-examination by by testimony of the witness given on her direct examination. At any rate the witness answered "no," and her testimony was thus rendered harmless. Subsequently the State contradicted her by the witness, Gallagher; this contradiction was properly limited in the charge of the court.

The appellant complains in this case and assigns as error, the failure of the court to charge the jury on accomplice testimony. An examination of the statement of facts in this case discloses that the State's case was made out by the witness, Mamie Tannehill, the step-daughter of the appellant, and it also discloses that the said Mamie Tannehill occupies in relation to the case, such an attitude as, in our opinion, rendered it necessary for the court to have given such a charge. Her evidence shows that the acts of copulation occurred in the same bed with her mother; that there were three such acts, and while she says that she resisted, and did all she could to prevent it, yet that he succeeded each time, and that her mother, who was lying by her side, was not disturbed. Her mother also testifies that she knew nothing of the transactions, and that she never had heard of them until the arrest of her husband. Other witnesses were in the adjoining rooms and close by, and they heard no disturbance. If the proof was clear that Mamie Tannehill was forced against her will to carnal intercourse, and there was no contrary proof, then she would not stand as an accomplice; would require no corroboration, and it would not be necessary, in such a case, for the court to charge on accomplice testimony; but this is not such a case, and at most, she stands in such a dubious attitude as consenting to the acts of copulation, as in our opinion, required the court to submit to the jury a charge on accomplice testimony. In this case, if there is such corroborative evidence, it is certainly of a weak character, and this rendered it the more imperative on the part of the court to have charged the jury that if they believed she was an accomplice, they must find that she was corroborated before they could convict the defendant. This was not done, and for this error, if for no other, the judgment in this case must be reversed, and it is accordingly ordered that this case be reversed and remanded. Watson v. State, 9 Tex.Crim. App., 237; Freeman v. State, 11 Tex.Crim. App., 92; Mercer v. State, 17 Tex.Crim. App., 452; Shelley v. State, 31 S.W. Rep., 492.

Reversed and Remanded.

DAVIDSON, Judge, absent.