Duncan v. State

• Decision Date: 24 May 1899
• Citation: 51 S.W. 372
• Parties: DUNCAN v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 372

DUNCAN v. STATE.

Court of Criminal Appeals of Texas.

May 24, 1899.

Appeal from district court, Frio county; M. F. Lowe, Judge.

Ben Duncan was convicted of fornication, and he appeals. Affirmed.

I. N. Spann and J. M. Eckford, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, J.

This conviction was for fornication.

During the trial the state called Olivia Cruz, the alleged paramour, as a witness. Her testimony was objected to on various grounds, to wit, because it tended to criminate her, was improper and immaterial, and her examination was not the detailing of facts, but simply the statement of what she had testified on a former trial. The court overruled these objections, and permitted her to testify. As a usual rule, a witness will not be compelled to incriminate himself, but there are exceptions to this rule, as well established as the rule itself. But, where the rule applies, the witness only can take advantage of it. It does not lie in the mouth of the defendant to object. The witness was not incompetent for the state by reason of the fact that she had been indicted or informed against for the same offense. A witness may, under such circumstances, testify for the prosecution, under the statute, but not for the accused, pending the prosecution against the witness. This witness had testified on a previous occasion, and, being an unwilling one on the subsequent trial, the court permitted the county attorney to lead her. Under the facts stated by the trial judge, we see no error in this matter.

We are of opinion the evidence fully justifies the conviction. It shows that defendant was an unmarried man, and also shows habitual carnal intercourse between the parties without living together. Fornication itself was sufficiently proved, in our judgment, independent of the paramour's testimony. The judgment is affirmed.