Barrett v. State

• Decision Date: 27 January 1909
• Citation: 115 S.W. 1187
• Parties: BARRETT v. STATE.
• Court: Texas Court of Criminal Appeals

115 S.W. 1187

BARRETT v. STATE.

Court of Criminal Appeals of Texas.

January 27, 1909.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

George Barrett was convicted of incest, and he appeals. Reversed and remanded.

J. T. Jones, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appellant was convicted in the court below on a charge of incest, and his punishment assessed at confinement in the penitentiary for two years. The prosecuting witness, Mrs. Lee Watson (née Lee Barrett) testified to facts which, if true, would have made appellant guilty beyond doubt. A number of questions are raised and grounds urged why this judgment of conviction should be reversed.

1. Among other things, it is urged that the indictment is insufficient, in that it is not alleged distinctly and unequivocally that appellant and prosecutrix were not legally married; nor is it alleged that, at the time of the alleged incestuous intercourse, appellant had knowledge of such relationship. We think, by analogy, at least, that this question should be decided adversely to appellant. The indictment follows the statute, and the intercourse is charged to have been both incestuous and unlawful. In the case of Simon v. State, 31 Tex. Cr. R. 187, 20 S. W. 399, 716, 37 Am. St. Rep. 802, it was held that it was unnecessary to charge that a marriage there alleged to have been in the prohibited degrees was entered into knowingly, and it is said that an indictment for incest is not defective because it fails to charge that the defendant knowingly entered into an unlawful marriage, and that the statute (article 349, Pen. Code 1895), does not employ the word "knowingly" in defining incest. See, also, Waggnor v. State, 35 Tex. Cr. R. 199, 32 S. W. 896.

2. Again, complaint is made that the court erred in admitting in evidence certain testimony to the effect, in substance, that on one occasion appellant accompanied his niece on a journey some eight or ten miles from their home, and that they returned alone that night. It is insisted that this testimony was immaterial and irrelevant, and that it was an inquiry into other and additional transactions, which should not be considered or received as a criminating fact against him. It was decided by this court in the case of Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47, that in a prosecution for incest, or for cognate offenses of any class, evidence is admissible of sexual acts between the same parties prior to, or, when indicating continuousness of illicit relations, subsequent to, the act specifically under trial. It would also necessarily follow that acts of familiar association and opportunities for such relations might be received.

3. It is urged, further, that the court erred in charging the jury that they were the exclusive judges of the weight of the testimony and the credibility of the witnesses, and that such a charge should not be given in a case like the one under consideration, where the court must also charge the jury that a conviction cannot be had upon the uncorroborated testimony of the accomplice. We think there is no necessary repugnancy between the two charges, and that the jury could not be misled, nor the rights of the appellant prejudiced, by giving the charge complained of. The identical question was decided adversely to appellant in the case of Jackson v. State, 22 Tex. App. 442, 3 S. W. 111, which was a charge of incest, where it is held that the facts demanded of the trial court a charge to the effect that the jury were the exclusive judges of the facts proved and of the weight to be given to the testimony.

4. Counsel for appellant complain that the court admitted in evidence testimony showing that, some nine months after the alleged intercourse, appellant's niece gave birth to a child. The ground of this objection was that the testimony was irrelevant and immaterial; that, while it would prove that some one had had intercourse with her, it was not a fact or...