
    (85 Tex. Cr. R. 118)
    WINGO v. STATE.
    (No. 5172.)
    (Court of Criminal Appeals of Texas.
    March 19, 1919.)
    1. Criminal Raw @=>772(4) — Trial — Instructions — Evidence of Act Barred by Limitation.
    In a prosecution for incest, refusal to amend an instruction authorizing conviction if act of intercourse took place “on or about the day alleged in the indictment,” by stating the jury must believe the act to have occurred within three years anterior to filing of indictment, was error, where there was evidence of an act more than three years prior thereto.
    2. Criminal Law @=5-369(8) — Evidence—Previous Offense — Act Barred by Limitation.
    In an incest prosecution, evidence of an act of sexual intercourse occurring more than three years prior to filing indictment, and barred from prosecution by limitation, was admissible; the defendant having testified and denied the offense and having introduced testimony controverting prosecutrix’s testimony.
    3. Criminal Law @=>742(2) — Evidence—Accomplices — Incest—Question for Jury.
    Where prosecutrix testified that she engaged in an incestuous relation with defendant through fear he would harm her, and gave evidence that he took advantage of his relationship to influence her to submit, which she did and kept silent, it was a question for the jury whether she was an accomplice witness, requiring corroboration as to commission of offense and defendant’s connection therewith, under Code Or. Proc. 1911, art. 801.
    4.' Criminal Law @=>780(3) — Evidence—Accomplices — Incest—Instructions.
    An instruction, in a prosecution for incest, held unduly restrictive in predicating the jury’s right to -find prosecutrix an accomplice witness upon belief that she “did voluntarily, and with the same intent which actuated defendant, unite with him in the alleged commission of the offense.”
    5. Criminal Law @=>507(7), 507½ — Evidence — Accomplice Witness — Incest.
    A general statement of prosecutrix that accused had carnal knowledge of her without her consent or that she resisted, or that it was had through force, fear, or threats, must be considered with all other testimony and facts, in determining whether she is an accomplice witness, and, if shown that the act could not have occurred without her consent or she did not oppose it, she is an accomplice, unless consent was obtained by duress or fraud. ’
    Appeal from District Court, Crosby County; W. R. Spencer, Judge.
    W. J. Wingo was convicted for incest, and be appeals.
    Judgment reversed, and cause remanded.
    J. W. Burton, of Crosby ton, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a conviction for incest.

The indictment was filed on May 14, 1918, and charged that the offense was committed on or about June 1, 1915. The court in instructing the jury authorized a conviction if the act of intercourse took place “on or about the day alleged in the indictment.” The timely objection to this phase of the charge was made, with the suggestion that it be so amended as to tell the jury that to authorize the conviction they must believe that the act of intercourse took place within three years anterior to the time the indictment was filed, and he complains of the refusal of the court to so correct the charge, pointing out that there were other acts of intercourse testified to by the accomplice, occurring at a date at which a prosecution based thereon would have been barred by the statute limiting the time for such prosecution to a period of three years after the offense is committed. The contention of appellant is enforced by condition of the evidence.

The prosecutrix gave birth to a child the 1st day of January, 1916, and thereafter, in testifying before the grand jury, declared that she had not had intercourse with appellant, but claimed that the birth of the child was occasioned by intercourse with other persons. She was the stepdaughter of appellant, was 22 years old at the time of the trial, and thereon testified that appellant began having intercourse with her when she was about 13 years of age, and continued until after she became pregnant. The most cogent fact corroborating the prosecutrix, and connecting appellant with the offense, was the testimony of a witness who claimed that, some time in the fall of 1914, he saw appellant and the prosecutrix in the act of sexual intercourse. \ The state of the evidence was such that the court in its charge should have made it clear to the jury that the conviction could not be based on the act described by the witness mentioned, it having occurred more than three years before the indictment was filed. The act occurring in 1914 was, we think, admissible in evidence; the appellant having testified and denied the offense, and having introduced testimony controverting that of the prosecutrix. Bradshaw v. State, 198 S. W. 942. But we think, responding to the objection made by appellant to the charge, that it should have been specifically stated therein that a conviction could be had only on an act occurring within three years prior to the filing of the indictment.

The prosecutrix testified that she engaged in the relation with appellant through fear he would harm her if she failed to do so, and to facts indicating that he took advantage of his relation to her to influence her to submit to him. She did consent, however, and kept silent. Under the evidence, whether she was an accomplice or not was a question of fact. Mercer v. State, 17 Tex. App. 452; Dodson v. State, 24 Tex. App. 514, 6 S. W. 548; Branch’s An. P. C. § 1930; State v. Duff, 138 Am. St. Rep. 281, noté.

The charge, under the facts, was, we think, unduly restrictive, in predicating the jury’s right to find that she was an accomplice upon their belief that she “did voluntarily, and with the same intent which actuated defendant, unite with him in the alleged commission of the offense.” Clifton v.; State, 46 Tex. Cr. R. 20, 79 S. W. 824, 108 Am. St. Rep. 983; Buford v. State, 68 Tex. Cr. Rep. 295, 151 S. W. 538.

In Clifton’s Case, supra, the court, submitting the issues arising out of facts quite similar to those developed in the instant case framed his charge in substantially the same language as that complained of. Because of its restrictive effect, a reversal was ordered.

To the same effect was the ruling in Pate v. State, 93 S. W. 556; Tate v. State, 77 S. W. 793. The principle by which the question whether the prosecutrix should be regarded as an accomplice should have been tested is that stated by Mr. Branch as follows:

“A general statement of the prosecutrix that the accused had carnal knowledge of her without her consent, or that she resisted, or that it was had through force, fear, or threats, must be considered in connection with her other testimony and all the other facts in the case, in determining whether or not her testimony given in behalf of the state is accomplice testimony, and if the proof shows that the act of intercourse alleged to be incestuous could not have occurred without her consent, or that she did not oppose it, she is an accomplice witness, unless under duress or induced to consent by fraud.”

And in- instructing the jury the court, in our opinion, on the suggestion of the appellant in his exceptions to the charge, in lieu of the language used, should have in appropriate terms embodied the principles stated above, and his failure to do so entitles appellant to a reversal of the judgment, for the reason that, except for the transaction referred to, occurring in 1914, the corroborating facts are extremely meager. On the proof Of that transaction, there was a sharp conflict and vigorous assault upon the credibility of the witness from whom it was developed, and his identification of the appellant as one of the parties engaged in the act was rather his inference from circumstances than from direct statement. The act of intercourse upon which the prosecution is predicated must, if it occurred about the 1st of June, as testified to by prosecutrix, have been several months after • she became pregnant, as she claimed on the trial, by appellant, but, as she previously testified under oath, through intercourse with others whom she named. The question whether her evidence was to be measured by the rule of accomplice testimony, which under our statute, article 801, O. C. P., requires corroboration, not only showing that the offense was committed, but tending to connect the appellant therewith, was of vital importance, and the failure to furnish the jury the correct rule by which to determine that issue was, under the facts in the case, of such consequences as to require that the judgment of the trial court is reversed, and the cause remanded. 
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