
    TYLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1912.)
    1. Criminal Law (§ 825) — Instructions— Request — Necessity.
    In a prosecution for incest, committed with accused’s daughter, in which the court charged that the jury should convict, if they believed beyond a reasonable doubt that accused had carnal intercourse with his daughter as charged in the indictment, knowing at the time that she was his daughter, and that if they believed from the evidence that the daughter consented to such intercourse they should acquit, there was no error in failing to charge that, in determining whether the daughter consented to the intercourse with her father, they should take into consideration all the facts and circumstances connected with the case, accused not having requested that specific charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    2. Criminal Law (§, 825) — Instructions— Request — Necessity.
    When the court properly submits a question to the jury in general terms, without exception and a request for a special charge submitting it more fully, there is no reversible error in not giving such a special charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    3. Criminal Law (§ 1173) — Appeal—Harmless Error — Failure to Instruct.
    A charge given in a prosecution for incest with accused’s daughter, authorizing a conviction if the jury believed beyond a reasonable doubt that accused had intercourse with his daughter as charged, knowing at the time that she was his daughter, but that, if they believed from the evidence that the daughter consented to the intercourse, they should acquit, was more favorable to accused than a requested charge that, in determining whether or not the daughter consented to the sexual intercourse with her father, they should take into consideration all of the facts and circumstances connected with the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Austin Tyler was convicted of incest, and he appeals.
    Affirmed.
    See, also, 143 S. W. 620.
    
      T. C. Turnly and O. S. Tort, both of Galveston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted for incest by force on his daughter, was convicted, and his penalty assessed at the lowest — two years in the penitentiary.

The testimony, which was evidently believed by the jury, showed without question that the appellant, with force, and not with the consent of his daughter, had carnal intercourse with her as charged in the indictment. It is unnecessary to detail the evidence. The only bill of exception in the record is to the overruling of appellant’s motion for new trial; said motion having several separate and distinct grounds therein.

The court by proper charge submitted the case to the jury, and authorized them to convict him if they believed beyond a reasonable doubt that he had carnal intercourse with his daughter as charged in the indictment, knowing at the time she was his daughter, but if they did not so believe beyond a reasonable doubt to acquit him. He also charged that in all criminal cases the burden of proof is on the state, the presumption of innocence, and reasonable doubt as required by the statute, and that they were the exclusive judges of the facts proved and the credibility of the witnesses, etc. In a separate paragraph he gave this charge: “If you believe from the evidence that Le-roire Tyler consented to such carnal knowledge, you are instructed to acquit the defendant and return a verdict of ‘not guilty,’ not because the absence of consent is essential to the crime of incest, but because consent renders her an accomplice, and conviction cannot be had on the testimony of an accomplice, without corroborative evidence, and the court does not consider there is such corroborative evidence in this case.”

Appellant complains that the court failed to charge the jury that, in determining whether or not appellant’s daughter consented to the intercourse with her father, “they should take into consideration all the facts and circumstances connected with the case.” They asked no charge to that effect. The first complaint thereof is in their amended motion for new trial. They took no bill of exceptions at the time to the charge because of this. It is the settled law of this state that when the court has properly submitted a question to the jury m general terms, and no exception is taken thereto at the time, and no special charge requested for a fuller submission of such question, there is no reversible error. It is needless to cite the cases.

The next complaint by appellant is that the court erred in giving the above-quoted charge, because there was no testimony in the case that said daughter of appellant consented to said intercourse, and that thereby the charge restricted the jury to a fact that was not in evidence, but claims that the court should have charged the jury to take into consideration all the facts and circumstances connected with the case, and that if they determined she was an accomplice that she would have to be corroborated with other testimony tending to connect the defendant with the commission of the act.

Appellant’s contentions are conflicting. The said charge given was more favorable to appellant than anything contended for by him in that regard, for it peremptorily told the jury that if the daughter consented to such carnal intercourse she was an accomplice, and, as she was not corroborated, if she consented, to return a verdict of not guilty. What we have said above shows that there was no merit in appellant’s other contentions on the same line.

The judgment is affirmed.  