It appears from the record that this cause was tried before a special judge, but the record fails to show the election or appointment and qualification of said judge. This being the state of the record the conviction could not be permitted to stand, even if in all other respects it was legal. Willson’s Crim. Stat., sec. 2194.
In the commission of the crime of incest the female is equally guilty with the man, if she knowingly, voluntarily, and with the same intent actuating him, unites with him in its commission. In such case if she testifies against him in a prosecution for the crime she is an accomplice witness, and a conviction upon her uncorroborated testimony can not be maintained. Mercer v. The State, 17 Texas Ct. App., 452; Dodson v. The State, 24 Texas Ct. App., 514.
In this case the conviction rests solely upon the uncorroborated testimony of the female with whom the incestuous intercourse is alleged to have been committed. Her testimony shows clearly and conclusively that if the crime was in fact committed she was equally guilty with the defendant in its commission, and her testimony, therefore, was that of an accomplice, and being wholly uncorroborated the conviction is unwarranted and illegal. The trial judge should have set aside the verdict, and thereby obviated the delay, trouble, and expense incurred by this appeal, and also relieved the defendant perhaps from an imprisonment which the *48law, considering the character of the evidence, does not sanction. The judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.