Owens v. State

• Decision Date: 23 November 1892
• Citation: 20 S.W. 558
• Parties: OWENS v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 558

OWENS v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1892.

Appeal from district court, Bee county; JAMES C. WILSON, Judge.

Bill Owens was indicted and convicted of incest, from which judgment he appeals. Reversed.

R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Defendant was indicted and convicted of incest, and sentenced to three years in the state penitentiary, and appeals to this court.

1. This case must be reversed, for the failure of the court to charge the law as to an accomplice's testimony. The rule as laid down by this court is that, where there is evidence tending to show that a state's witness is an accomplice, and the testimony of such witness is materially prejudicial to defendant, it is incumbent on the court, whether asked or not, to give in charge to the jury proper instructions relative to accomplice's testimony. Winn's Case, 15 Tex. App. 169, 171; Sitterlee's Case, 13 Tex. App. 587; Hines' Case, 27 Tex. App. 104, 10 S. W. Rep. 448.

2. The indictment charges that defendant carnally knew "Letitia Owens," the said defendant "being the father of said Lettie Owens." On the trial the testimony shows that her name was Letitia, and she was known by no other name Defendant objected to the inculpatory evidence upon the ground of variance in name. The rule is that when two names have the same derivation, or when one is an abbreviation or corruption of the other, but both are taken promiscuously, and according to common use held to be the same, though differing in sound, the use of the one for the other is not a material misnomer. Goode v. State, 2 Tex. App. 524; Garrison v. People, 21 Ill. 538. Still there should be some proof that the person was so called. The court signs the bill of exceptions taken to the introduction of testimony with the explanation that "Lettie" is the contraction for Letitia; but the name "Lettie" does not appear in the indictment or the evidence, and courts cannot take judicial notice of contractions in names. We suggest to the county attorney the propriety of getting a new bill of indictment, in which the name of Letitia Owens is duly set forth.

Reversed and remanded. Judges all present and concurring.