It is conclusively shown by the evidence that
no act of carnal intercourse between the defendant and the prosechtrix, Kinnie, occurred prior to the death of Kinnie’s mother. In his charge to the jury the learned judge, in substance, instructed thijt carnal intercourse between defendant and Kinnie would be inc’estklthough such intercourse did not occur until after the death of said ■innie’s mother.
"WHare of the opinion that this view of the law is incorrect. *615During the existence of the marriage relation between defendant and Kinnie’s mother carnal intercourse between defendant and Kinnie would unquestionably have been incestuous. Kinnie was then his wife’s daughter. But after the death of the mother and wife, the relation of step-father and step-daughter which existed between defendant and Kinnie ceased. She was no longer his wife’s daughter, within the meaning of the statute defining the crime of incest. A divorce between the defendant and his wife would likewise have put an end to his relation to Kinnie. (Compton v. The State, 13 Texas Ct. App., 271; Noble v. The State, 22 Ohio St., 541; S. C., 1 Green’s Cr. Rep., 662.) Relationship by affinity ceases with the dissolution of the marriage creating it. (1 Bish. Mar. & Div., § 314; 1 Bish. Cr. Proc., § 901.)
[Opinion delivered March 17, 1886.]If our view of the law be correct, and we are satisfied that it is, the defendant is not guilty of the crime of incest, and the court erred in so instructing the jury as to allow them to find him guilty, the evidence showing that, if he had carnal intercourse with Kinnie, it was not until after her relationship to him of step-daughter had ceased to exist. Under the facts of the case, he may be guilty of fornication and of adultery, and perhaps of rape, but not of incest.
The judgment is reversed and the cause is remanded.
Reversed and remanded.