The appellants were jointly indicted, tried and convicted of sodomy, the verdict of the jury being: “We, the jury, find Charles Medis and Ed Hill guilty as charged, of sodomy, and assess the punishment at ten years confinement in the penitentiary.”
Appellants contend by their counsel that this is not a good or legal verdict. This proposition is now well settled in favor of appellants. (Flynn et al. v. The State, 8 Texas Ct. App., 398; Matlock et al. v. The State, 25 Texas Ct. App., 716; Cunningham v. The State, 26 Texas Ct. App., 83; 4 Ark., 430; 16 Ark., 37.)
Appellants were charged with committing the act upon one Milton Werner. Upon the trial Werner was introduced as a witness for the State, and his testimony was relied on for a conviction. The court failed to give instructions to the jury relating to the necessity of corroborating said witness—counsel for appellants contending that Werner was consenting, and *196was therefore an accomplice. Upon this subject, says Bishop: “When this offense is committed on a non consenting person who' becomes a witness, it appears that his early complaint may be shown in corroboration, the same as those of the injured woman in rape. If such person had consented, he would be an accomplice whose testimony would for this reason need corroboration.” (2 Crim. Law, 1018.)
Opinion delivered February 9, 1889.Werner was evidently consenting; but if the evidence should leave this in doubt, it would then become a question for the jury, and not the court, to determine under the proper instructions, whether the person was or was not consenting, and the jury should in such a case be instructed that if they found that he was consenting, then they must find that he was corroborated.
Reversed and remanded.