Burford v. State

• Decision Date: 27 November 1912
• Citation: 151 S.W. 538
• Parties: BURFORD v. STATE.
• Court: Texas Court of Criminal Appeals

151 S.W. 538

BURFORD v. STATE.

Court of Criminal Appeals of Texas.

November 27, 1912.

Appeal from District Court, Reeves County; S. J. Isaacks, Judge.

W. H. Burford was convicted of incest, and he appeals. Reversed and remanded.

Gibson & Wilson, of Pecos, and J. E. Starley, of Barstow, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted for incest, having carnal knowledge of his step-daughter, Miss Willie Boyd.

One of the serious questions raised in the case is that the record contains no proof that appellant's first wife was dead, or he had been divorced from her. That he married his second wife is amply proven, he testifying: "I am the husband of Mrs. Alice Burford [the mother of the prosecuting witness]. We have been married something like 17 years. I have six children, but one of them is by my first wife. He is a boy 21 years old, living in the Indian Territory." As the record clearly disclosed that appellant had been married prior to his marriage to the mother of the prosecuting witness, on another trial it should be made clear that at the time of his second marriage his first wife was dead, or the marriage had been annulled. McGrew v. State, 13 Tex. App. 342. It might be said that the circumstances, admission of appellant, etc., are sufficient to establish this fact; but, as the case will be reversed on other grounds, we call attention to it, so this evidence may be made more full.

When the case was called for trial, the appellant moved to continue on account of the absence of the present Mrs. Burford, who had been regularly summoned. Some of the testimony he proposed to prove by this witness was material. The state sought to avoid the force of the application by admitting, if she was present, she would testify as stated. This is an insufficient admission. The state must admit that the testimony is true, or the continuance should be granted.

The court charged the jury: "Where a female and a male are prohibited by law from carnally knowing each other, as given you in charge in paragraph 1 hereof, and the female should unite with the male in having an incestuous intercourse, involuntarily and unwillingly, and only because of fear or intimidation unite with him in the commission of the carnal act, then in such instance the female would not be an accomplice in law." The defendant requested a special instruction, which was refused, instructing the jury that the prosecuting witnesses was an...