It was not error to omit to give the jury a charge explaining the rules governing in cases of circumstantial evidence. In this case the evidence of defendant’s incestuous acts was direct and positive. It is only when the evidence relied upon for a conviction is wholly circumstantial that such a charge is required. (Smith v. The State, 31 Texas Ct. App., 378; Jack v. The State, 30 Id., 656.)
It was not error to refuse defendant’s motion for a new trial, based upon the ground that Hilly Jones, his daughter, with whom the incestuous acts had been committed, being charged by indictment with the same offense, was, at the time of his trial, incompetent to testify in his behalf, but that, since his conviction, she had been tried for and acquitted of said offense, and was now a competent witness in his behalf, and that her testimony was material to him, etc. It is evident from the proof that if defendant .had carnal knowledge of said Hilly, it was with her consent, and she was therefore a participant in the crime, and equally guilty with him. (Mercer v. The State, 17 Texas Ct. App., 453.) Such a witness is not entitled to full credit. It is provided by statute that a conviction can not be had upon the testimony of an accomplice, unless corroborated, etc. (Code Crim. Proc., art. 741.)
With reference to the granting of a new trial upon evidence not attainable at the time of the trial, that is, the testimony of a codefendant, then incompetent but since rendered competent by acquittal, the rule is that, if such evidence be of a suspicious im*503port, if it stand alone, if, though acquitted, it be uncertain whether he is innocent, and if his character be so far compromised as to make it doubtful whether he ought to be believed, the new trial will generally be denied. (Rucker v. The State, 7 Texas Ct. App., 549.) The proposed testimony of the witness Hilly Jones would stand alone, uncorroborated by any other evidence, and positively contradicted by the evidence of unimpeached witnesses. It is not at all probable that her testimony would change the result; and for these reasons the court properly refused to grant defendant a new trial upon this ground.
Opinion delivered June 11, 1887.We find no error in the conviction, and the judgment is affirmed.
Affirmed.