Armstrong v. State , 86 Tex. Crim. 444 ( 1919 )

Appellant was convicted of the crime of incest, alleged to have been committed with his daughter, and his punishment was fixed at five years confinement in the penitentiary.

There is but one bill of exceptions, in the record, and its contention is that the trial court erred in allowing the State to show by one Walter Price, that at his house, and some time after the arrest of appellant, witness heard Dora Armstrong, the daughter of appellant, state that she "saw papa on the bed on top of Katherine the other day." The objection to this evidence was that it was hearsay. Dora Armstrong had been placed on the stand as a witness for the State, and had testified that on the occasion, which is the basis of this prosecution against appellant, he sent her mother away from home and her to the field, and that she, witness, came back to the house to get her shoes, and looked in at the window and saw appellant in bed with her sister Katherine, and that he was on top of her. Upon cross-examination of this witness, the defendant endeavored to get her to admit that she had told other parties that she knew nothing against her father, and that she did not see him in bed with Katherine, or on top of her; and upon her denial of such statements, two of those named to her were placed on the stand as witnesses for appellant, and each of them testified that Dora had told them at the time and place inquired about, that she did not see her father in bed with Katherine or on top of her.

Under this state of the case, it is too well settled to call for discussion, that the State may corroborate the witness whose testimony is thus attacked, by introducing evidence that at other times and places, such witness had made statements similar to the testimony given on the instant trial. Branch's Annotated Penal Code, Sec. 181, and authorities cited.

Exceptions were reserved to the court's charge on accomplice testimony, and we have examined same with a good deal of care. While the said charge is not in the usual form, we think it substantially correct, as applied to the facts of this case. The case was one of direct evidence, the daughter with whom the alleged incestuous intercourse was had, testifying positively to the commission of the offense, and that while same was in performance, the younger daughter, Dora, came up and looked through the window at herself and her father, and that appellant ordered Dora away. Dora testified that she saw the said performance through said window, and that appellant ordered her to go back to the field.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.