Masten v. State , 109 Tex. Crim. 596 ( 1928 )

The offense is incest, the punishment confinement in the penitentiary for three years.

Appellant calls in question the sufficiency of the evidence, asserting that the testimony of Laura Belle Henard, who was an accomplice, is not sufficiently corroborated.

The testimony of prosecutrix was, in substance, as follows: Prosecutrix, Laura Belle Henard, was appellant's niece. In the spring of 1922 she lived at Era, in Cooke County. She had gone to school during the winter and until the latter part of April, when school closed. School closed on Friday and on the following Wednesday or Thursday appellant came to Era in a wagon and went to the home of Lewis Masten, where prosecutrix was staying. When he saw prosecutrix he requested her to go home with him and she advised him that she had to get the consent of her father, J. H. Henard. She went to her father and procured his consent to visit in appellant's home. Returning to Lewis Masten's home she got in the wagon with appellant and drove to the home of her father for the purpose of procuring some clothing to take with her on the visit. She then drove in the wagon with appellant through the town of Era and on to appellant's home. When she reached appellant's home there was nobody in the house, appellant's wife being away at the time. On arriving at appellant's home, prosecutrix and appellant went in the house. After entering the house, appellant had sexual intercourse with prosecutrix. Prosecutrix remained at appellant's home until the following Sunday evening, at which time she returned to her home with her brother, Glenn Henard. During the time she was at the home of appellant she went with appellant's wife to a neighbor's where the ladies of the neighborhood were practicing a play. A short time before visiting appellant's home, prosecutrix went on a fishing party with a man and several boys and girls. She had frequently visited appellant's home. Prior to the time the incestuous relation with appellant was had, prosecutrix had never indulged in sexual relations, and subsequent to said time did not have sexual intercourse with any man. She had never had a date with a man, and although she had gone to a few parties, she had been with other girls and had never been alone with any boy. Prosecutrix gave birth to a baby on the 26th of January, 1923, which was approximately nine months after her visit in appellant's home. She testified that appellant was the father of her baby.

The state sought to corroborate prosecutrix by showing the following: The mother of prosecutrix testified that her daughter gave birth to a baby on the 26th of January, 1923; that prior to the summer of 1922 she had never known prosecutrix to have a date with a young man and had never known of her being alone in the company of any man other than her father, her brother, or appellant; that prosecutrix had never left the house in company with any man other than her father, her brother, or appellant. The father of prosecutrix corroborated the fact of her leaving with appellant in a wagon for his, appellant's home, and testified that he, the father, had never had sexual intercourse with prosecutrix. A younger sister of prosecutrix had never known of prosecutrix going anywhere with a young man. Glenn Henard, the brother of prosecutrix, went to the home of appellant on Sunday afternoon and carried prosecutrix to her own home. This witness had never known of prosecutrix having a date with any man or boy and had never himself had illicit relations with her. On the occasion of the picnic referred to in the testimony of prosecutrix, she was not alone with any man, and each male member of the party testified that he had never had illicit relations with prosecutrix. The fact of the visit of prosecutrix to the home of a neighbor of appellant during the time that the practice of a play was in progress was corroborated by one of appellant's witnesses. The physician who attended prosecutrix during the confinement showed the period of gestation from conception to birth is usually about 280 days; that sometimes the period is 270 days, and occasionally runs to 290 days.

Considering the sufficiency of the corroborative testimony, aside from that of the accomplice witness, can it be said that such testimony tends to connect appellant with the offense charged? We think not. While it is shown that prosecutrix was at appellant's home approximately nine months previous to the date she gave birth to a baby, we find nothing in the record corroborative of her statement to the effect that she and appellant were alone in appellant's home on the occasion she testifies that he had sexual intercourse with her. The fact that prosecutrix gave birth to a child approximately nine months after her visit to the home of appellant is a circumstance show that she had sexual intercourse with some man at about the time she was in appellant's home. But, if appellant and prosecutrix were alone in his home, the fact that the period of gestation from conception to birth varies from 270 to 290 days would be destructive of the conclusion that the fact of appellant's access to prosecutrix tended to connect him with the offense charged. There was a period of time during which prosecutrix was not in the company of appellant when sexual intercourse and conception would, taking into account the period of gestation, have resulted in the birth of the baby on the date shown by the testimony. In our opinion, the corroborative testimony does not exclude the fact of access to prosecutrix during such period of time.

Prosecutrix was an accomplice, and the court instructed the jury to that effect. It was, therefore, necessary for the state to offer testimony other than that of the accomplice, which of itself tended to connect appellant with the commission of the offense. Jones v. State, 263 S.W. 288. This the state failed to do, and it becomes our duty to direct a reversal of the case The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING BY STATE.