Masten v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Martin
• Citation: Masten v. State, 20 S.W.2d 780 (Tex. Crim. App. 1929)
• Decision Date: 09 October 1929
• Docket Number: (No. 12612.)
• Parties: MASTEN v. STATE.

Page 780

20 S.W.2d 780

MASTEN v. STATE.

(No. 12612.)

Court of Criminal Appeals of Texas.

October 9, 1929.

Commissioners' Decision.

Appeal from District Court, Cooke County; B. W. Boyd, Judge.

Arthur Masten was convicted of incest, and he appeals. Reversed and remanded.

See, also, 100 Tex. Cr. R. 30, 271 S. W. 920.

W. D. Garnett and Jno. W. Culp, both of Gainesville, for appellant.

J. T. Adams and J. L. Gettys, both of Gainesville, Sullivan, Speer & Minor, of Denton, and A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Incest is the offense, and the punishment three years' confinement in the penitentiary.

A former appeal of this case will be found in 109 Tex. Cr. R. 596, 6 S.W.(2d) 367, where the facts are fully stated and discussed.

We are again confronted with the same question decided on the former appeal, namely, the sufficiency of the testimony to corroborate the accomplice, Laura Bell Hepard. We do not regard the facts found in the instant record as materially different from those held insufficient on the former appeal and set out fully in the opinion above referred to. We feel unable to add anything to what was there stated. The state makes the claim that it has materially strengthened its corroborative testimony. We agree that some of the facts proven on the former trial have been more fully and more clearly established, particularly is this true of the corroborative circumstance of appellant having been alone at his home with the prosecutrix on the afternoon that the crime is claimed to have been committed. However, our former opinion was based, not upon the weakness of the corroborative evidence, but rather upon a lack of such evidence. We find in this record no new material incriminating fact. The rule as to corroborative testimony has been clearly stated by Judge Hurt in the following language: "The accomplice must be corroborated by the evidence of some other witness, and this corroboration must be by proof of some fact tending to connect the defendant with the commission of the offense. The accomplice may state any number of facts, and these facts may all be corroborated by the evidence of other witnesses; still, if the facts thus corroborated do not tend to connect the defendant with the crime, or if they do not point pertinently to the defendant as the guilty party or as a participant, this would not be such corroboration as is required by the code. We suggest this mode as a proper test: Eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witness or witnesses with the view to ascertain if there be inculpatory evidence —evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration, though the accomplice may be corroborated in regard to any number of facts sworn to by him." Welden v. State, 10 Tex. App. 401.

Again it has been stated: "`The purpose of the...