198 S.W. 942 | Tex. Crim. App. | 1917
Lead Opinion
The conviction is for incest with a punishment assessed at 5 years’ confinement in the penitentiary.
It is charged that appellant had carnal knowledge of his stepdaughter, Ethel Mc-Comb, about November 1, 1914. Ethel Mc-Comb was about three years of age at the time her mother and appellant were married. Appellant and his wife lived together continuously up to the time of the trial of this case and thereafter so far as the record shows. There were several children born, among them twin daughters, who were, at the time of the alleged offense, about 14 years of age. Ethel McComb was a member of the family, and continued such until after appellant was indicted in April, 1916, after which time she went to Oklahoma and lived with the family of E. R. Conway, whose wife was her aunt. A child was born to her on July 12, 1915. Ethel McComb, the prosecuting witness, testified that the act of intercourse with appellant took place during October, 1914, about 3 o’clock in the afternoon, while she, appellant, and his twin daughters, above mentioned, were picking cotton in a 25-acre field; that the cotton was about 2 or 2½ feet high, the rows about 3 feet apart; that she and appellant were picking three rows together, and appellant’s daughters each picking one row; and that at the time of the occurrence the daughters were about 150 feet distant. The circumstances show that the act of intercourse, if it occurred, was with her consent, and that she was about 19 years of age.
First. Flight or evasion of arrest: Ethel McComb resided in appellant’s home with his family for some 7 months after the birth of her child. In March, 1916, she went from his home at Anna some distance to the county
“He was gone from home and from the neighborhood as far as I could find out. I searched the whole country, and did not find him, and did not see him for several days afterward when he was in the sheriff’s office.”
N» indictment had then been found. There is no evidence that appellant knew of the issuance of the warrant for him; no evidence save that of the accomplice, Ethel McComb, that he knew that she was going before the grand jury; none at all as to her mission there. ■ The extent of the search, the inquiry made, the length of time consumed by the officer, is not disclosed.
Third. Appellant’s resemblance of the offspring: Appellant’s hair was black; Ethel McComb had dark hair; her baby had light hair, nearly white. On the question of parentage evidence, of resemblance has been used. Wharton on Crim. Ev. p. 788, note. Our attention has not been directed', however, to any instance in which circumstances so weak as those detailed have been held sufficient to show relationship, or to corroborate a witness who claimed it to exist. In our opinion there is not sufficient evidence of corroboration to justify the conviction of appellant. Ceasar v. State, 29 S. W. 785; Bismark v. State, 45 Tex. Cr. R. 54, 73 S. W. 965.
The judgment of the court below is therefore reversed, and the cause remanded.
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Dissenting Opinion
(dissenting).
I have studied the evidence herein carefully. The other evidence corroborated Ethel McComb’s evidence fully and completely in compliance with the statute and decisions heretofore rendered in four distinct particulars:
First. It was shown a baby was born to her just the time of gestation from the time she swore appellant had intercourse with her.
(Second. He is the only man who is shown to have had the opportunity to have had intercourse with her to have been the father of her baby. Appellant attempted to show that a young boy, Howard Chumley, who lived a few miles distant from him, had the opportunity and was the father of said baby. Chumley testified and showed he not only never had intercourse with Ethel, but never had an opportunity, and Ethel also so swore.
Third. As soon as appellant learned Ethel was going to prosecute him, he fled the country, and was gone many months before he was found and arrested.
Fourth. After the prosecution had been pending for some time, and Ethel had left him and gone to live with Mr. Conway, her uncle, who lived in Oklahoma, appellant went there to see her. Her uncle swore he declined to let him see her, and said:
“He [appellant] says that he would admit that he had treated Ethel wrong, and that she was a good girl. * * * ”
This was a clear admission of the truth of the charge against him.
• There are other circumstances in the testimony tending also to corroborate Ethel. I think there is no doubt whatever of appellant’s guilt, and that Ethel was fully corroborated. This case should have been affirmed.