At a former day of this term this case was affirmed. Appellant has filed a motion for rehearing in which he complains that this court was in error in holding that the charge as given by the trial court on accomplice's testimony, though incorrect, was harmless in view of the testimony offered on the trial of the case; and, second, that this court was in error in holding that the court below properly refused appellant's special charge No. 3. This charge reads as follows: "Gentlemen of the jury, you are instructed that although you may believe that the defendant was engaged to be married to the prosecuting witness, Flora Dykes, during the year 1905, but if you further find from the evidence that the defendant or anyone else had intercourse with the prosecuting witness, Flora Dykes, during the year 1904, you must acquit the defendant and say by your verdict not guilty." The court in his main charge instructed the jury as follows: "You are charged that before you can convict the defendant, you must believe from the evidence, beyond *Page 522 a reasonable doubt that the defendant seduced the prosecuting witness in Knox County, as alleged, and that at that time she, the said Flora Dykes, was a chaste woman, who had never had sexual intercourse with anyone prior to the 9th day of July, 1905, and unless you believe beyond a reasonable doubt that said Flora Dykes had never had such sexual intercourse with anyone prior to the time she had such intercourse, if any, with defendant in Knox County, Texas, you must find the defendant not guilty." When the case was originally submitted, our attention was not directed to the question of limitation. The bill of indictment was returned into the District Court of Knox County, on March 25, 1908. The offense of seduction is barred within three years. Hence, if the prosecutrix in this case was seduced in 1904, the offense would have been barred. The prosecutrix testified that the first act of intercourse between her and defendant was in July, 1905, and while they lived upon what was known as the McGee farm, west of Knox City. She testified further that it might be possible that she was mistaken as to whether the offense occurred in 1904 or 1905. The prosecutrix mother, Mrs. Dykes, testified that they moved to Knox County in 1901, and the first year they lived on the Steeve Reed place and then moved to the McGee place, lived there two years and then moved on the place where they are now living. Simon Goss testified that he saw the appellant and the prosecutrix in a compromising position in the spring of 1904; that he passed them in a buggy at night, and that he went on to church and that the defendant and prosecutrix came on in the church, and he stated to Lon Hopkins and Shaffer Smith when they came in what he had seen when he passed them; that the witness Goss left Knox County and moved to Jones County in the early part of 1905, and had not been back to Knox County. Lon Hopkins and Shaffer Smith took the stand and testified about the witness Goss telling them of this occurrence and the circumstances occurring that night and they fixed the date of it in 1904. It is sufficient to say that the testimony raises the issue as to when this offense was committed. Therefore, it was the duty of the court to have submitted it and the special charge of the defendant in this case to the effect that if the jury believed the intercourse was had in 1904, that they should acquit. In our original opinion we held that in view of the testimony in the case that the charge of the court on accomplice's testimony was not prejudicial to the defendant, though incorrect. As the case will have to be reversed, we would suggest to the trial court to follow the charge laid down by this court in the case of Campbell v. State, 57 Tex.Crim. Rep.,123 S.W. 583.
The motion for rehearing will, therefore, be granted, the judgment of affirmance set aside and the case reversed and remanded.
Reversed and remanded. *Page 523