29 S.W. 271 | Tex. Crim. App. | 1895
Appellant was convicted of incest with his daughter. Under the facts adduced on the trial, she was an accomplice. To corroborate her, the State introduced the testimony of Annie Pane, and other facts and circumstances. This witness testified positively to the incestuous intercourse between the parties. Her reputation for truth and veracity was attacked by proving it generally bad, and that she was in the habit of making different narrations of any given transaction of which she spoke. Appellant offered no evidence, and made no effort to prove she had made contradictory statements in regard to the fact that she had witnessed the intercourse between appellant and his daughter. To sustain this witness, the State, over objection, was permitted to prove she had made statements *90 similar to those testified by her to other parties. We have held, and adhere to the ruling, that when the adverse party proves or attempts to prove the witness has made contradictory statements, then such sustaining evidence is admissible. But we have not held, that when the witness is impeached by proving general bad reputation for truth and veracity, such witness can be thus sustained. In his valuable work on the Law of Evidence, section 570, Mr. Wharton states the rule clearly in this respect, substantially as follows: "If it is sought to be shown that the witness testified under corrupt motives, or that his testimony is recently fabricated, then such testimony is admissible to sustain the witness, and it is legitimate to prove he made the same or similar statements to others soon after the transactions." This we understand to be the correct rule. The court erred in admitting this testimony.
For this error, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.
