Kincaid v. State, 18275.

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Lattimore
• Citation: Kincaid v. State, 97 S.W.2d 175, 131 Tex. Crim. 101 (Tex. Crim. App. 1936)
• Decision Date: 10 June 1936
• Docket Number: No. 18275.,18275.
• Parties: KINCAID v. STATE.

Page 175

97 S.W.2d 175

KINCAID v. STATE.

No. 18275.

Court of Criminal Appeals of Texas.

June 10, 1936.

Rehearing Denied October 14, 1936.

Appeal from District Court, Hopkins County; Chas. D. Berry, Judge.

A. D. Kincaid was convicted of incest, and he appeals.

Affirmed.

Ramey A. Smith, of Sulphur Springs, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for incest; punishment, two years in the penitentiary.

There are twelve bills of exceptions, each of which has been carefully considered, but none of which are believed to present error. The indictment charged as follows: "Did then and there unlawfully carnally know Mattie Lou Giles, the said Mattie Lou Giles then and there being the daughter of Mrs. Annie Giles, the sister of the said A. D. Kincaid." Appellant attacks the sufficiency of this averment, insisting that it is indefinite and does not enable him to know therefrom whether Mattie Lou Giles or Mrs. Annie Giles was meant by the expression "the sister of the said A. D. Kincaid". We do not agree to this. We think the statement of the indictment clear, and that it was the mother of prosecutrix in this case, who was the sister of appellant.

Several bills of exceptions relate to the admission of testimony of witnesses as to the relationship of the mother and daughter, the objection to which is based upon the supposed insufficiency of the indictment. Complaint is made by one bill of the overruling of an application for a continuance or postponement because of the illness of appellant. We find nothing in the record supporting any proposition of necessity for such continuance, or any fact showing injury as the result of the refusal thereof.

From our examination of this record, we are led to observe that the claimed rights of appellant appear to have been unusually well guarded by the learned trial judge, who gave all of the special charges asked and a lengthy supplemental charge, and in his main charge gave to appellant the benefit of a clear instruction upon every doubtful issue, or issue which might have been deemed favorable to the accused. The only request seemingly denied by the trial court was that for an instructed verdict.

The state introduced appellant's written confession. The trial judge told the jury that it was for them to determine whether the written statement was voluntarily made, and also whether it was understood by the accused at the time it was made, and if they entertained a reasonable doubt as to whether the accused did understand, or that he was induced to make it by any persuasion, coercion, or improper influence, the jury should not consider it. Appellant testified on the trial that he was hard of hearing, and claimed that he did not understand the contents of said written confession. The court gave a special charge to the jury that if the evidence raised in their minds a reasonable doubt as to whether appellant did hear or understand the written confession, they should disregard it and not consider it for any purpose.

Claiming that there was not sufficient evidence to corroborate the confession, the accused asked a special charge that the jury be instructed not to convict the accused unless there was other evidence corroborating said confession and tending to connect the accused with the crime charged. This instruction was given. There was a contention made by appellant that he was of low mentality, and a special charge was asked instructing the jury that even though the state might have proved facts which constituted the offense, they could not convict if they found from the evidence that the accused was in a mental condition in which he was irresponsible and did not know or realize the nature and consequences of his acts. The court gave this charge. Appellant testified on the trial that he had had the mumps and by reason thereof he could not perform the physical act of intercourse. A special charge was asked by appellant upon this issue, which was also given.

As we view the record, the only question is as to the sufficiency of the testimony. It was shown without dispute that prior to the death of appellant's wife the couple had deeded their farm to appellant's niece, Mattie Lou Giles, who was making her home with them. After the death of the wife, appellant with his niece, who was a young, strong, vigorous woman around thirty years of age, continued to make their home on said farm. Witnesses for the state and defense testified that the young woman visited almost nobody. Her nearest neighbor testified that she lived within "hollering distance" of appellant, and that the young woman in question had no visitors to amount to anything, and did not visit among the neighbors. This lady was a defense witness. No sort of attack was made upon the chastity of the prosecutrix even by suggestion, except that one witness for the defense testified that at a time when appellant was not at home he saw a car come to the house and saw the young woman get in it and go away, and afterward she came back to the house and got out and went in with a man. Upon cross-examination this witness admitted that he was under conviction and serving a suspended sentence for a felony. The testimony further showed that about a year after the death of the wife appellant called a doctor over a telephone at night to come to his place. The doctor came, after being assured by appellant that he would be paid for his services. This doctor testified that he delivered prosecutrix of a well-developed eight-pound baby girl. The young woman at the time of her delivery was admittedly occupying a bed in the room which appellant usually occupied. He paid the doctor in part for his visit that night. The testimony showed that appellant and the young woman in question had lived alone in said house since the death of appellant's wife, that they occupied adjoining rooms, and that the young woman did the work around the house. She did not testify. The statement of facts shows that she was tendered as a witness by the state, but an objection made by appellant was sustained and her testimony was not introduced. The county attorney of the county testified that a few days after the birth of the child appellant made to him in his office a written confession, which he wrote down in the language used by appellant. The witness said: "He said to me the things I wrote down there which I read to the jury." This confession is as follows:

"The State of Texas, County of Hopkins.

"May the 11th, A. D. 1935, I A. D. Kincaid do hereby make the following free and voluntary statement to Wm. J. Fanning, County Attorney of Hopkins County, Texas, about and concerning incest charges on Mattie Lou Giles on the date of June 15th, July 15th, A. D. 1934.

"I make this statement after being warned by the said Wm. J. Fanning, County Attorney of the county and state aforesaid, that I do not have to make this or any other statement concerning said incest charges and that any statement made by me may be used in evidence against me upon any trial for the offense of incest concerning which I am voluntarily making a statement and that this statement cannot be used in evidence for me.

"My name is A. D. (Dean) Kincaid. I am 61 years of age. My wife died May 8th, 1934. Right before her death in April, we deeded our 56 acre farm to Mattie Lou Giles, Mattie Lou Giles is the daughter of my sister, my sister is dead, her name was Cynthia Ann Kincaid Giles, her husband's name was Allie Giles, they lived in Sherman, Texas, and are both dead. Mattie Lou is their daughter and is my niece. About the 15th day of July, 1934, I first had sexual intercourse with Mattie Lou Giles, she was willing. I asked her for it at night and told her that I had had the mumps and they had gone down on my testicles and the doctor had told me that I could not be a father. So we went ahead and did it one time. She told me that she had never had had intercourse with anyone. I don't believe she ever had had intercourse with anyone either because she bled some when I first tried to put it in and I had difficulty in having a complete act of intercourse. The baby was born May 6th. Dr. A. F. Payne waited on her. It was a girl baby. I know that I am the father of that child, I know of my own knowledge that no other man has had intercourse with her and that I am the father of that baby. I do not know whether she has ever been married. When she got pregnant and had the baby, she told me for us to tell that she was married and that Willie D. Giles was the father of the baby. I love Mattie Lou Giles.

                       "A. D. Kincaid."
                

Practically, appellant's only contention, as above stated, is that the evidence is not sufficient; his proposition being that the confession is not sufficiently corroborated.

In his brief appellant cites Cokeley v. State, 87 Tex.Cr.R. 256, 220 S.W. 1099; Garcia v. State, 96 Tex.Cr.R. 170, 256 S.W. 597; and the opinions in three cases of Masten v. State, found at 100 Tex.Cr.R. 30, 271 S.W. 920, 109 Tex.Cr.R. 596, 6 S.W.(2d) 367 (Tex.Cr.App.) 20 S.W.(2d) 780, and Nolan v. State, 60 Tex.Cr.R. 5, 129 S.W. 1108, Ann.Cas.1912B, 1248. The Masten Cases all turned upon the insufficiency of the testimony to corroborate an accomplice witness. The Cokeley Case, supra, was one involving rape of an insane woman. This court entertained serious doubt as to the sufficiency of the proof of the insanity of the woman and suggested that the issue should be submitted to the jury. In this case also the court said there were no facts or circumstances corroborating the confession of the accused. We do not regard either of the cases cited by appellant as affording support for appellant's contention, which must rest upon the facts of this particular case and the law applicable thereto.

It would hardly be contended that the same rule should be applied to the corroboration of the confession as to the corroboration of an accomplice....