
    COTTRELL v. STATE.
    (No. 6516.)
    (Court of Criminal Appeals of Texas.
    April 26, 1922.)
    1. Criminal law <&wkey;>5ll(5) — Testimony held insufficient to corroborate prosecutrix.
    In a prosecution for incest, where prosecu-trix testified to many acts of intercourse with accused, testimony of a school-teacher that on the occasion relied on for conviction accused called for prosecutrix at school, and she went away with him, and that at another time accused came to the school grounds but witness did not see him converse with prosecutrix on that occasion, was insufficient to corroborate prosecutrix, who was an accomplice.
    2. Criminal law <&wkey;>507(7) — Female committing voluntary incest held accomplice, whose testimony must be corroborated.
    Where prosecutrix voluntarily commits incest with accused, she is an accomplice, and to sustain accused’s conviction she must be corroborated, to connect accused with offense charged against him.
    Appeal from District Court, Comanche County; J. R. McClellan, Judge.
    Earl Cottrell was convicted of incest, and appeals.
    Reversed and remanded.
    Goodson & Nabors, of Comanche, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State!
   HAWKINS, J.

Conviction is for incest; punishment being assessed at confinement in the penitentiary for five years.

Many questions are presented in the record, but the Assistant Attorney General has conceded that the evidence offered by the state for the purpose of corroborating the testimony of prosecutrix is entirely insufficient to meet the requirement of the law in that particular, and our examination of the statement of facts leads us to the conclusion that he is correct in his concession; therefore this is the only matter we will consider in our opinion.

The alleged injured female is Floy Cottrell, a niece of appellant. She testified to many acts of intercourse with appellant, extending over quite a period of time. During 1920 she was attending school, of which one Dean Collins was the teacher. She says that upon one occasion appellant came by the sehoolhouse and requested her to go to her grandfather’s with him, and that she asked permission of the teacher to leave school for that purpose; that when they arrived at her grandfather’s no one was at home, and that an act of intercourse with appellant occurred at her grandfather’s at this time. This act of intercourse was the one elected by the state upon which to prosecute. There is no semblance of corroborating evidence in the record relative to any other act of intercourse claimed by her to have occurred between her and appellant, and the only evidence in the record relative to the one in question is that of her teacher, Dean Collins. He does not pretend to know anything about what occurred after they left the school ground, nor where they went. He does testify that during the school term of 1920 he saw appellant at the school grounds on one occasion, but never saw him and pros-ecutrix in conversation, but remembers that prosecutrix requested permission to be excused from school, and that she went away with appellant.

The mere statement of the purported corroborating evidence is sufficient to show that it does not in any degree tend to show an act of intercourse between prosecutrix and appellant upon the occasion in question. Where prosecutrix voluntarily engages in incestuous intercourse with accused, she is an accomplice, and before conviction can be upheld it is absolutely essential that she be corroborated by some evidence tending to connect the accused with the offense charged against him. Mercer v. State, 17 Tex. App. 452; Skidmore v State, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 466. For many other authorities collated upon the same subject, see section 1030, p. 588, Branch’s Anno. Pen. Code.

The judgment of the trial court is reversed, and the cause remanded. 
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