
    LANDIN v. STATE.
    (No. 9189.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    1. Incest &wkey;> 14 — Proof that former husband of defendant’s wife was dead or divorced necessary to convict, where doubtful as to whether prosecutrix was defendant’s daughter or stepdaughter.
    To sustain conviction of incest, where issue as to whether prosecutrix was defendant’s daughter or his wife’s daughter by former husband was sharply contested, it was necessary for state to show affirmatively that wife’s former husband was dead or divorced and her marriage with defendant legal.
    2. Incest <&wkey;44 — Proof that defendant’s wife was not dead at time of offense necessary, where doubtful as to whether prosecutrix was defendant’s daughter or stepdaughter.
    In trial for incest, where issue whether prosecutrix was defendant’s daughter or his wife’s daughter by former husband was sharply contested, it was necessary for state to show that wife was not dead at time of offense to sustain conviction.
    3. Incest <&wkey;46 — Charge authorizing conviction, if evidence showed valid marriage of defendant to prosecutrix's mother, though latter died before offense, erroneous.
    -In trial fer incest, where issue whether prosecutrix was defendant’s daughter or his wife’s daughter by former husband was sharply contested, court should have charged jury to acquit, if state failed to show either that wife’s former husband was dead or divorced and’her marriage with defendant legal, or that wife was not dead at time of alleged offense, and should not have so connected such points as to lead jury to believe they should convict if valid marriage and death of wife were both established.
    4.- Criminal law 134(3) — Rulings om matters not likely to arise on retrial need not be considered.
    Admission and exclusion of evidence and refusal of new trial for newly discovered evidence need not be considered, where not likely to arise on new trial granted for other reasons.
    <§=»For other cases saa same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision. -
    Appeal from District Court, Caldwell County; M. O. Jeffrey, Judge.
    Patricio Landin was convicted of incest, and be appeals.
    Reversed and remanded.
    O. E. Richards, of Lockhart, and Leon Green, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted in the district court of Caldwell county on a charge of incest with his daughter, and his punishment assessed at six years in the penitentiary.

After a cáreful examination of the entire record, we find that the main issues for this court to determine in this case are whether or not the prosecutrix was the daughter of the appellant or his stepdaughter, and whether or not at the time of the alleged incest the mother of prosecutrix was dead. The trial court recognized that these two issues were properly raised by the testimony and charged the jury thereon, but not without objection to the sufficiency of said charge upon the part of the appellant’s counsel.

The indictment charged incest by appellant with his daughter and the state’s testimony tended to prove said issue, while, upon the other hand, the testimony of the appellant himself and other evidence introduced by him was to the effect that-she was only a stepdaughter and was the daughter of his wife by a former husband. This issue was sharply contested on both sides. The undisputed proof, as shown by the record, is to the effect that the prosecutrix’s mother had been married to two other men prior to the alleged marriage between her and the appellant and said record is entirely silent as to whether or not her former husbands were dead or had been legally divorced from her at the time of the marriage or alleged marriage by the appellant in this case. We understand the law to be in this state, under cases of this character, that it is absolutely necessary for the state, .before sustaining a conviction, to slum affirmatively tliat said former husband or husbands were either dead or divorced and that said marriage with tbe defendant was legal, in order to convict tbe defendant in tbis case. McGrew v. State, 13 Tex. App. 340; Stanford v. State, 42 Tex. Cr. R. 343, 60 S. W. 253; Burford v. State, 68 Tex. Cr. R. 295, 151 S. W. 538; Hamilton v. State, 68 Tex. Cr. R. 419, 153 S. W. 331; Vickers v. State, 69 Tex. Cr. R. 628, 154 S. W. 578.

Upon tbe other proposition as to whether or not it was necessary to show the wife was dead at the time the alleged intercourse took place, the appellant’s contention is supported by the cases of Johnson v. State, 20 Tex. App. 609, 54 Am. Rep. 535; Vickers v. State, 69 Tex. Cr. R. 628, 154 S. W. 578; Hamilton v. State, 68 Tex. Cr. R. 419, 153 S. W. 331. The evidence on this point is very uncertain by the prosecutrix, and, upon the part of the appellant, it is shown that no such relationship existed between him and the prosecutrix and that his wife died in July about the 10th, prior to the alleged date ■of intercourse in the following August. We are of the opinion that the evidence is entirely insufficient, in not showing affirmatively a legal marriage between appellant and his said wife as required by the decisions supra, and is very doubtful as to whether said wife was not dead at the time of the alleged intercourse.

The appellant criticised the charge of the court in these particulars and offered special charges covering these phases of the case, which were refused. We find the court, in his general charge, charged the jury on both phases of this case, but connected same up on both points which was calculated to lead the jury to believe that if the evidence showed both a valid marriage and the death •of the appellant’s wife, to convict, and in our opinion the charge should have been so framed as to have instructed the jury that, in the event either one of said issues were not shown beyond a reasonable doubt, to .acquit the defendant. In view of another trial, we suggest that the charge be so framed.

The appellant complains at the refusal of the court to permit him to introduce certain witnesses that were very material to his defense in showing that the prosecutrix had made statements inconsistent with her. testimony, and showing that the child, which she contends belonged to the appellant, was the child of another mqn. The court excluded witnesses tendered on this issue, because the rule was invoked and had been violated by the appellant’s counsel. These bills, as well as the bills to the action • of the court in overruling the motion for a new trial for newly discovered evidence and the admission of testimony upon the part of the state •to the effect that the defendant was the father of another child by another woman other than the prosecutrix, which last testimony was afterwards withdrawn by the court, will not likely arise upon another trial, and we deem it unnecessary to pass on those issues at this time. .

For the reasons above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  