Clifton v. State

• Citation: 79 S.W. 824
• Parties: CLIFTON v. STATE.
• Decision Date: 23 March 1904
• Court: Texas Court of Criminal Appeals

79 S.W. 824

CLIFTON v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1904.

Appeal from District Court, Milam County; J. C. Scott, Judge.

William Clifton was convicted of incest, and appeals. Reversed.

Moore, Hearrell & Moore and R. Lyles, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is a conviction of incest, the punishment assessed being confinement in the penitentiary for a term of five years.

The prosecutrix is the niece and stepdaughter of appellant. With reference to the attitude of the prosecutrix as an accomplice, the court left it as a matter of fact to be determined by the jury, and the criterion upon which it turned under the charge was, if she entered into the sexual intercourse with the same intent which actuated defendant, she would be an accomplice. This she denied, and affirmed that she did not do so. On this point she testified: "I did not enter into it for the same purpose he did. I was not desirous and willing for it. I just felt I was under his influence, and whatever he would do would be all right, until I began to really find out the wrong of it. I was under his influence and control. That continued every week or two along that way up to January of this year. * * * Speaking of his fondling me, when I was quite young, with his hand, * * * that was changed to another method when I was about 13, or 14, or 12. Then he would perform carnal intercourse. Sometimes it would be once or twice a week. I am twenty years old. I have a good common-school education, and I have clerked in two stores." It is contended that the criterion given by the charge is entirely too restrictive, and not correct under the circumstances of this case; and appellant cites in support of this proposition Tate v. State, 77 S. W. 793, 8 Tex. Ct. Rep. 741; Ceasar v. State (Tex. Cr. App.) 29 S. W. 785; Dodson v. State, 24 Tex. App. 514, 6 S. W. 548; Ratliff v. State (Tex. Cr. App.) 60 S. W. 666. These cases are authority for the statement that the prosecutrix was an accomplice. The facts in each of those cases, except the Tate Case, were stronger in favor of prosecutrix not being an accomplice than in this case. The Tate Case is very similar to this case. It was held in the Tate Case, under the circumstances developed on that trial, that the charge here complained of was too restrictive. Prosecutrix denies that she engaged in the sexual intercourse with the same purpose and intent; that she was neither desirous nor willing to it; that she did so because she was under his influence, and whatever he did would be all right. Now, the jury evidently understood from the charge that, unless she engaged in the intercourse with the same desire as did appellant, she would not be an accomplice. This is not the true criterion, under the facts of this case. If she submitted to his embraces, as she says, at intervals for a considerable period of time, and kept silent, she would nevertheless be an accomplice, although she did not willingly enter into it with the same desire as did appellant. That she did so is apparent not only from what has already been said, but from other portions of her testimony. She says: "I never made any complaint to my mother, or any one else, about Clifton's intercourse with me. Before I went to Breckenridge, I did deny to my mother that I had missed my period at that time. Mother and I talked about it. She got some medicine for me for it. She asked me then whether or not I had been guilty of an imprudent act of this kind. I denied it to her. I just said nobody had done so. I did say, `No man has ever touched me.' * * * But I wanted to protect him. I told her I never had connection with anybody to shield him, and keep our home together. * * * He did become willing for me to have company this year, since the latter part of January. It was along in the spring. When this occurred in January, he never attempted to have intercourse with me after that. What caused him to stop was that I had made up my mind that I would not allow it any more. I did not say anything to him. We just had hard feelings after that. The reason there was no more of it was I just simply would not allow it." These extracts are copied simply to demonstrate that she was an accomplice. Under the facts the court should have gone further in the charge, and informed the jury, if in fact she did not enter into it with the same desire, intent, and purpose as did appellant, yet, if these matters occurred as she testified, and she remained silent, this would constitute her an accomplice. If she did not oppose the act, she would be an accomplice. We are not laying down a form of charge. In fact, as stated in some of the cited cases, the court instructed the jury that the witness was an accomplice. It has always been held to be the safer practice, where the facts are unquestioned as to the relation of the witness to the crime as an accomplice, to so inform the jury. Where this occurs, there is no question for the jury to solve. The law constitutes the witness, under such circumstances, an accomplice, and there must be the necessary corroboration. Upon the motion for new trial the court would have no option but to hold her an accomplice, nor would this court on appeal. That under this character of case the court should have instructed the jury that she was an accomplice, see Sessions v. State, 37 Tex. Cr. R. 58, 38 S. W. 605; Armstrong v. State (Tex. Cr. App.) 26 S. W. 829; Wilkerson v. State (Tex. Cr. App.) 57 S. W. 964; Tate v. State, 77 S. W. 793, 8 Tex. Ct. Rep. 740.

While prosecuting witness was testifying she stated that appellant had sexual intercourse with her about the 10th of November, 1902...