Mitchell v. State

DAYIDSOH, Judge.

Appellant was convicted of fornication, and his punishment assessed at a fine of $50; hence this appeal.

There are but two assignments of errror that require consideration: First, the failure of the court to instruct the jury that they must find that the appellant and the prosecutrix were not living together; and second, the failure of the court to give the proper charge on accomplice testimony.

We have examined the charge of the court in the above respects, and find that the court entirely omitted, both in his definition of the offense and in his charge to the jury, to instruct them, as an ingredient of the offense, to find that the parties were not at the time living together. The information contained an allegation to the above effect. It was necessary to be proved as alleged, and the court, in defining the offense, and in applying the law to the facts of the case, should have included this element in his charge.

On accomplice testimony, the court gave only this charge: “You are further instructed, that the defendant in this case can not be convicted on the unsupported evidence of the accomplice, Leah Sinyard.” Appellant reserved an exception to this charge, and requested one in writing, submitting an appropriate instruction on this subject. This charge was refused by the court, and appellant again excepted. The court might, under the evidence, well assume that Leah Sinyard, who testified that the acts of fornication were committed by defendant with her, was the accomplice alluded to, although there was another Leah Sinyard who testified in the case; but the vice in the charge was the failure of the court to properly define to the jury the character of corroboration, and that they must find, before they could convict the appellant, that the accomplice was corroborated by other testimony, and should have also defined to the jury the nature of the corroborative testimony required. This was not done by the charge given by the court, and the requested charge should have been given.

■ The judgment is reversed and the cause remanded.

Reversed and remanded.

Hurt, Presiding Judge, absent.