Wadkins v. State

• Decision Date: 26 January 1910
• Citation: 124 S.W. 959
• Parties: WADKINS v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 959

WADKINS v. STATE.

Court of Criminal Appeals of Texas.

January 26, 1910.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

General Wadkins was convicted of incest, and he appeals. Reversed, and remanded for new trial.

El J. Gibson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

By indictment filed in the district court of Navarro county appellant was charged with the offense of rape committed upon one Rittie Wadkins, and, in a separate count, that appellant had carnal intercourse with said Rittie Watkins, she being then and there his daughter. Upon a trial had in said court on the 12th day of April, 1909, appellant was convicted of the offense of incest, and his punishment assessed at confinement in the penitentiary for a period of five years.

For the most part, the case was well tried, and few grounds set out in appellant's motion for a new trial, or matters evidenced by bills of exception, require attention. We think the charge of the court on the subject of incest, except in so far as it relates to the matter of accomplice testimony, when taken in connection with special charge No. 3, given at the request of counsel for appellant, fairly and well presents all the issues arising under the evidence.

1. Objection was made on the trial that the court erred in not requiring the state to elect as to the count in the indictment on which a conviction would be sought. The refusal of the court so to do is rested on the safe ground that the transaction and occurrence with reference to which both rape and incest were charged occurred at the same time and were one and the same transaction. It therefore follows, if the intercourse was shown and it was by force, it would be rape. The intercourse being shown, in the absence of proof of force, or if consent were shown, and the relationship being proven, it would be incest. Under the circumstances an election was not required.

2. It seems well settled in this state that the crime of incest can be committed between a father and an illegitimate child. Clark v. State, 39 Tex. Cr. R. 179, 45 S. W. 576, 73 Am. St. Rep. 918; 2 McClain, Criminal Law, § 1120. It seems also to be well settled by the authorities that it is competent to introduce as proof of such relationship, admissions and statements of the defendant. Am. & Eng. Ency. of Law, vol. 16, p. 140; Morgan v. State, 11 Ala. 289; Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672. It seems also to be the rule that relationship between the parties may be shown by reputation (State v. Bullinger, 54 Mo. 144; Ewell v. State, 6 Yerg. [Tenn.] 364, 26 Am. Dec. 480), though the contrary to this view has been held in Alabama (Elder v. State, 123 Ala. 35, 26 South. 213).

In this case testimony was introduced by the state to the effect, in substance, that when the complaining party, Rittie Wadkins, was an infant, and soon after the death of her mother, to whom she was born out of wedlock, appellant claimed her as his own child, took her into his home, and recognized and treated her as such. Some proof was introduced by the state of intimate relations between appellant and the mother of the child, rendering it probable that in fact she was his child. Recognition of her as his child was shown practically without contradiction. All this testimony was admissible in proof of the fact alleged. Its weight, of course, was a question for the jury, and, like any other evidence, it was before them for their consideration; nor was appellant entitled to instructions with reference to the effect or value or insufficiency of any single and isolated part of this evidence. We think none of the questions raised on the appeal, therefore, will entitle appellant to a reversal of the case, except the charge of the court on the subject of accomplice testimony.

3. On accomplice testimony the court thus instructed the jury: "A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. The accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory, or otherwise. It includes all persons who are connected with the crime by an unlawful act or omission on their part, transpiring either before, at the time of, or after the commission of the offense. Now, if you are satisfied from the evidence that the witness Rittie Wadkins was an accomplice to the act of carnal knowledge, or you have a reasonable doubt as to whether she was or was not an accomplice as that term is defined in the foregoing instructions, then you are further instructed that you cannot find the defendant guilty upon her testimony alone, unless you are satisfied that the same has been corroborated by other evidence tending to establish that the defendant did in fact commit the offense."

This instruction was excepted to at the time by proper bill, and was also made a ground of the motion for new trial, and its accuracy...