Appellant was convicted of incest, and his punishment assessed at seven years confinement in the penitentiary; hence this appeal.
The indictment contained three counts, — the first for rape on a girl under 15 years of age; the second, rape committed on a woman by force; and the third, a count for incest, the same alleging that the party with whom the incest was committed was the daughter of the appellant. In submitting the case to the jury the court eliminated the first count, and instructed the jury on the second count (rape committed on a woman by force), and on the third count (incest). The jury acquitted appellant of the charge of rape, and found him guilty of incest on the last count.
Appellant contends that the court erred in failing to instruct the jury on accomplice testimony. So for as the act of carnal intercourse is concerned, the prosecutrix was the principal, if not the only, witness for the *Page 182 State; and as to her paternity she was also the State's main witness. The jury acquitted appellant of rape, and therefore of the force necessary to constitute rape. They found that she had copulated with appellant, and that he was her father. They evidently found that such act of carnal intercourse was with her consent. Under this state of case, the court should have given a charge on accomplice testimony. See Watson v. State, 9 Texas Crim. App., 237; Freeman v. State, 11 Texas Crim. App., 92; Mercer v. State, 17 Texas Crim. App., 452; Stewart v. State, 35 Tex.Crim. Rep..
Appellant also insists that the testimony of the prosecutrix is not corroborated, and that consequently, the verdict can not be sustained. We believe he is correct in this contention. The proof showed, on the part of the State, an isolated act of copulation, testified to solely by the prosecutrix, and we fail to find in the record any corroboration of her testimony as to this matter. The fact that she may have told another witness of the occurrence on the next day, in the first place, was not legitimate testimony on a count for incest, and consequently it was not the testimony of another witness to some fact in the case tending to corroborate her, and to connect appellant with the commission of the offense for which he was convicted. Appellant could not have objected to the admission of her statements, because they were admissible under the count for rape, but inadmissible in support of her on the count for incest.
Appellant also insists that the proof is not sufficient to show that the prosecutrix was his daughter. There is testimony in the record tending to show that she was his illegitimate daughter. The authorities hold that the crime of incest can be committed between illegitimate relations within the prohibited degree. See 2 McClain Crim. Law, sec. 1120, and authorities cited in note. The proof here made, however, is by no means satisfactory. And we hold in such case that the evidence should be clear and unequivocal as to the fact of relationship.
We also believe that the court erred in overruling appellant's application for a continuance, under the peculiar facts of this case. It appears that the evidence of Josephine Brown is material, and that he used due diligence to procure her attendance. Her evidence was made the more necessary by the State introducing Ellen Burton as a witness. For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 183