
    BLALACK v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.)
    1. Incest (§ 11) — Prosecution—'Variance.
    In a prosecution for incest, where the indictment charged accused with having intercourse with the daughter of his sister, proof merely that the female was his niece is not sufficient to warrant a conviction, and constitutes a fatal variance.
    [Ed. Note. — For other cases, see Incest, Cent. Dig. § 10; Dec. Dig. § 11.]
    2. Criminal Law (§ 782) — Trial—Instructions.
    In a prosecution for incest, an instruction that accused could not be found guilty upon the testimony of prosecutrix unless the jury believed her testimony was true and that it “showed or tended to show,” that accused is guilty as charged is erroneous, for the jury should be required to find that the evidence of the prosecutrix was true and showed the guilt of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1847, 1849, 1851, 1852,1877, 1878, 1880-1882, 1906, 1907, 1909-1911, 1960, 1966, 1967; Dec. Dig. § 782.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    D. M. Blalack was convicted of incest, and he appeals.
    Reversed and remanded.
    
      J. S. Jameson and W. W. Alcorn, both of Montague, for appellant. O. 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
    
   DAVIDSON, J.

Appellant was convicted of incest; his punishment being assessed at 2½ years’ confinement in the penitentiary.

The indictment alleges that appellant did “unlawfully carnally know, and incestuously have carnal knowledge of Rusha Wal-ser, then and there being the daughter of the sister of him, the said D. M. Blalack, to wit: the daughter of Sarah Walser, being then and there the sister of him, the said D. M. Blalack, in this, that D. M. Blalack and Sarah Walser were the children of the same father and mother.”

Among other things, appellant requested the following instruction: “Xou are instructed to return a verdict of not guilty, if you find from the evidence that the state has failed to prove that one Sarah Walser was the sister of the defendant and mother of said Rusha Walser, and that the state has failed to prove that said Sarah Walser and defendant, D. M. Blalack, were the children of the same parents.” In refusing to give this charge the court makes this explanation: “The prosecutrix and her brother both testified she was the niece of defendant; and, while it was not specifically proved that prosecutrix was the daughter of Sarah, yet there was no question raised as to this issue, only in the above special charge, presented after the evidence closed. C. E. Spencer,” etc. In order to obtain a conviction under this indictment it was necessary to prove the relations of the parties as set out in the indictment. It is unnecessary to discuss the question whether the descriptive averments were unnecessary or not. It was charged in the indictment that appellant and Sarah AValser were the children of the same parents, and that Sarah AValser was the mother of the prosecutrix with whom appellant is alleged to have had incestuous intercourse. The state was necessarily compelled to meet the allegations in the indictment. It was incumbent upon the state to prove that the mother of prosecutrix was named Sarah Walser, and that Sarah Walser was the sister of the defendant, and that they were brother and sister of the same father and mother. This was not done. That prosecu-trix was niece of appellant does not prove she was daughter of Sarah Walser. The court should have given the charge as requested. Not only so, but we are of opinion under the judge’s explanation, not only ought he to have given the charge, but if the state does not meet these allegations by evidence, the conviction could not be sustained under this indictment.

There is another trouble in the case not specifically pointed out, but we call attention to it in view of another trial. The court charging the jury uses this language: “Xou are instructed that you cannot find the defendant guilty upon the testimony of said Rusha Walser, unless you first believe her testimony is true, and that it shows, or tends to show, that the defendant is guilty as charged in the indictment, and unless you further believe,” etc. This charge has been condemned in quite a number of cases. The evidence of the prosecutrix should not only be found to be true by the jury, but that it shows the guilt of the defendant. It is not sufficient if it merely tends to do so, as the charge asserts.

The judgment is reversed, and the cause remanded.  