
    GRIFFIN v. STATE.
    (No. 4733.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    On Motion for Rehearing, March 20, 1918.)
    1. Criminal Law <&wkey;761(6) — Instructions— Assumption as to Facts.
    In a prosecution for incest, a charge that if the jury believed that the parties were uncle and niece they would be within the statute was not erroneous, since the judge did not assume or charge the jury as to the existence of facts.
    2. Criminal Law <&wkey;1093 — Appeal and Error-Bills op Exception.
    In a prosecution for incest, a bill of exception reciting that the court permitted a witness to testify that defendant had always been called a certain person’s son was insufficient as being too indefinite.
    3. Criminal Law &wkey;>1093 — Appeal and Error-Bills op Exception.
    In a prosecution for incest, a bill of exception reciting that a witness was asked if it was not the practice for children to adopt the name of their stepfather, and that he'would have answered in the negative, was too indefinite for consideration.
    4. Criminal Law &wkey;>1093 — Appeal and Error-Bills op Exception.
    In a prosecution for incest, a bill of exception that a witness had testified that her daughter disappeared in a certain county and could not be found was insufficient as being too indefinite.
    On Motion for Rehearing.
    5. Incest <&wkey;16 — Instructions — (Relationship op Parties.
    In a prosecution for incest it was error to submit the relationship of niece; there being evidence that the relationship was half-niece, in view of statute defining the crime which makes a distinction between niece and half-niece.
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Henry Griffin was convicted of incest, and he appeals.
    Reversed and remanded.
    I. N. Williams, of Bit. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Incest was charged, the basis of which was that appellant and the girl with whom the incestuous intercourse is charged to have occurred were uncle and niece. The court charged the jury that, if they believed this relationship existed, it would be sufficient within the statute of incest to prohibit carnal knowledge between parties. This is a matter of law under the statute, and the court was not in error in thus instructing the jury. The court did not assume nor charge the jury that the facts existed. He simply charged the jury that, if the facts did exist, as a matter of law this would bring the parties within the statutory inhibition.

There are some bills of exception which are too indefinite for consideration. Bill No. 1, for instance, recites that the court permitted the witness G. W. Childress to testify that defendant has always been called Joe Griffin’s son.

“I have known Mm ever since he was a year or two old, and he was then wearing the name of Griffin, and he was always known as Joe Griffin’s son.”

How this arose or how it came about in the trial of the case is not stated. It may have been entirely admissible. It was evidence from a family relation who knew all the facts. Childress was related to these parties, as shown by the facts, and had known them practically all their lives, and testified as did other witnesses to facts which showed the relationship between the parties as charged in the indictment.

Another bill recites that this same witness Childress was asked by appellant on cross-examination if it was not a practice for children to adopt the name of their stepfather. Witness would have answered in the negative had he been permitted to answer, but the state objected and the court sustained the objection and a reply was not elicited. What was the object and purpose of this, or what effect it would have, is not stated, except the general proposition that it was in rebuttal to witnesses’ testimony that defendant had gone by the name of Griffin. Had the witness answered it would have been in the negative, and could not have been of any advantage, so far as the bill shows, to appellant.

The witness Etta Childress .testified that her daughter disappeared in Red River county from her home and that she could not find her. The objection was that defendant was not charged with the crime in Red River, and was not charged with abduction. This is the bill, and it is .too indefinite. As the bill presents itself, there is nothing upon which this court can base a conclusion. The facts would indicate, if we refer to the testimony, that the girl named as the incestuous paramour of appellant was sent from Red River county to Titus county by defendant, and he followed her and had incestuous intercourse with her in Titus county. It is unnecessary to discuss those matters further. The evidence is ample to show not only the relationship, but clearly demonstrates the fact that they cohabited and held -themselves out as husband and wife in Titus county.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. Appellant has filed a motion for rehearing.

The indictment charges incest between appellant and his niece. There is evidence to show that she was the daughter of his half-sister, making her only his half-niece instead of full-blood. The contention is now that the court erred in submitting the relationship of the parties under the allegations of the indictment. Upon inspection of the statute, in view of the evidence, we are of opinion that appellant is correct, and that the affirmance should lie set aside. The statute provides that where a party marries his niece or half-niece he would be guilty of incest, or where he should carnally know his niece or half-niece. Inasmuch as the Legislature saw proper to make these distinctions, we are of opinion that the charge of the court should have adhered to the statute and submitted to the jury the relationship of half uncle and half niece. It is unnecessary to discuss the other questions in the case.

The motion for rehearing is granted, the affirmance set aside, and the judgment is reversed and the cause remanded.

PRENDERGAST, J., absent. 
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