Appellant again complains because of the failure of the trial court to charge on the law relative to accomplice testimony as applied to the testimony of the girl Marie Long. It is shown by the record that this girl, then a child of twelve years, when first questioned by her mother, denied that she had had intercourse with anyone, but finally told the mother that the cause of her pregnancy was one Charles White, a school-mate, and afterwards it was found that there was such a child of the tender age of about nine or ten years. However, upon being questioned by the officers, she charged appellant with having several acts of intercourse with her, naming time and place, and to some extent this testimony received corroboration by means of circumstances.
While it is true that one who conceals the offender, or assists him in evading arrest or trial, by reason of such acts, may constitute such person an accomplice, whose testimony might demand corroboration, but in this case the testimony further shows that this girl on the day following told her mother practically the same story that she told the officers, and told the same at this trial. One of her reasons for telling her mother the first story, so she says, was on account of her fear of her stepfather, whom she claimed had threatened her with violence if she told of his conduct. This was a girl of twelve years of age, and could not be an accomplice in the act itself because of her inability, under the law, to give her consent to such an act, and this misstatement to her mother, when first questioned, constitutes the only statement which might aid appellant in evading punishment for the act of some one in causing her pregnancy. Upon her first questioning as to this matter by those in authority, she told what the jury believed to be the truth, and we do not *Page 544 think the casual conversation with her mother, in the presence of the claimed author of her condition, should tinge her testimony to such an extent as to call her an accomplice witness under the law. See Womack v. State, supra.
We can readily see in her first denial of any intercouse an effort upon her part to shield herself from her mother's disapproval, and do think the effort to implicate a nine-year-old boy but a continuation thereof.
We are doubtful whether our reasoning in the original opinion, based on the statement to appellant's wife and her inability to testify against him, should here apply. She could have initiated the prosecution by informing the officers of the little girl's corrected statement. Nevertheless, we do think that the first statement of the mother should not be held as an effort to shield appellant from prosecution for his alleged unlawful act. We also are of the opinion that the doctrine of accompliceship as herein offered by appellant would not of a necessity carry with it a punishment as an accessory after the fact, but merely contemplates an accomplice witness, as said in Turner v. State, 37 S.W.2d 747, at page 749.
We think this case was correctly affirmed as shown in the original opinion, and the motion is therefore overruled.