
    WEBER v. STATE.
    (No. 7902.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1923.)
    1. Criminal law &wkey;507(7) — Prosecutrix in incest prosecution, who did not resist, is “accomplice,” within rule requiring corroboration of testimony.
    In a prosecution for incest, prosecutrix, who made no resistance, is an accomplice, whose testimony must be corroborated, even though she may not have engaged in the. act voluntarily, and with the same intent as actuated the accused.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    2. Incest <&wkey;l5 — Evidence held not to sustain conviction jn view of want of corroboration of prosecutrix.
    In prosecution for incest, evidence held insufficient to sustain conviction in that there was no corroboration of the testimony of the prosecutrix, who had made no resistance, and was therefore an accomplice witness.
    Appeal from District Court, Gillespie County;' J. H. McLean, Judge.
    John Weber was convicted of incest, and he appeals.
    Reversed and remanded.
    W. C. Linden, of San Antonio, and Herman Usener and H. H. Sagebiel, both of Fred-ericksburg, for appellant;
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Gillespie county of incest, and his punishment fixed at three years in the penitentiary.

As we view the record in this case but one question needs to be discussed, to wit, the lack of testimony corroborating the accomplice. Appellant was convicted of incest with his daughter, a woman 34 years old at the time of the trial, and over 30 years old at the date of the alleged commission of the offense. She testified that her father had intercourse with her at their home while the rest of the family were away, and that from his acts conception resulted, terminating in the birth of her child. It. is well settled in this state that in incest cases, if the prosecutrix does not make resistance to the incestuous intercourse, she is regarded as an accomplice witness, even though she may not have engaged in the act voluntarily and with the same intent as actuated the accused. Tate v. State (Tex. Cr. App.) 77 S. W. 793; Pate v. State (Tex. Cr. App.) 93 S. W. 556; Gillespie v. State, 49 Tex. Cr. R. 531, 93 S. W. 556; Burford v. State, 68 Tex. Cr. R. 295, 151 S. W. 538. Applying this principle of law to the testimony of the daughter of appellant, we must conclude that she was an accomplice. Examining the record to see what appears to corroborate her, we observe that it is shown that in May, 1921, she gave birth to a child. No person aside from prosecutrix herself testifies to any statement or fact from which the paternity of the child can be ascribed to appellant. Two witnesses testified that as far as they knew prosecutrix did not keep company or go with any men. It was shown that she had a brother 18 or 19 years old, and that she went to places where presumably other men were. We have carefully examined the testimony, which is very short, to' see if there be any other criminat-ing fact given by any witness aside from the accomplice, and are unable to find same. We are compelled to conclude the evidence offered to corroborate the accomplice insufficient in law for that purpose.

The judgment will be reversed, and the cause remanded. 
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