Joe Jackson v. The State, 22 Tex. Ct. App. 442

White, Presiding Judge. Appellant appeals from a conviction for incest, the alleged crime having been charged to have been committed with his step daughter. She was the main, and in fact the only witness who testified to the facts pertaining to the commission of the imputed crime. We will not say that her testimony is improbable or untrue, but it certainly has failed to impress us with such cogency as to its truth that we can confidently rely upon it with unhesitating belief.

Without recapitulating the facts deposed to, the salient features in substance are that the carnal act was committed by force and without her consent, within about fifty yards of a public road, from a hundred to one hundred and fifty yards of a house upon a hill, from which the parties could be seen; that there was no outcry or alarm made by the prosecutrix. She did not tell her mother or any one else about it.' She never had carnal intercourse with defendant but the one time, and no one else except defendant had ever had carnal connection with her.

That the act was committed on the tenth of November; that her child was born on the twenty-ninth day of the following June—seven months and nineteen days after—was well formed, mature and healthy; that defendant is almost black, the prosecutrix brown, and the child a yellow baby of lighter color than the mother. In addition to this testimony, the State produced four witnesses, who only proved the fact that the prosecutrix was the daughter of the wife of defendant, and that he and the mother had been legally married.

One witness for the defense testified that he knew the reputation of the prosecutrix for chastity in the community in which she lived, and that it was bad. There was no other testimony adduced on the one hand or the other. Now, upon this state of facts, what was the plain, clear and unmistakeable duty of the court, under the statute which requires that in his charge to the jury he shall distinctly set forth the law applicable to the case?” (Code Crim.

Proc., Art. 677.) Most clearly it was that, after instructing them as to. the law of the particular crime, he should have told them, in view of the peculiar features of the case we have enumerated, and which thus stood out in such bold relief, either that they were the exclusive judges of the facts (Code Crim. Proc., Art. 676), or better and more pertinent still, that they were “the exclusive judges of the facts proved and of the weight to be given to the testimony.” (Code Crim.

Proc., Art. 728.) If ever there was a case loudly calling for an instruction in conformity with these statutory declarations, in our opinion the case here presented is one. We search the charge in vain for any such instruction; and we pause here to remark that, in all our varied experience with criminal trials, we can not recall a single instance in which some such instruction was not given the jury, though in many cases perhaps it was really unnecessary to do so, there not being the slightest suspicion as to the credibility of the witnesses or weight of the testimony.

But in this instance the charge was not excepted to as given, nor was this singular omission called to the attention of the court either by special instruction or in the motion for a new trial. In such condition of the record, what is the rule to govern the action of this court? Error in a charge, if promptly excepted to and a bill of exceptions saved thereto, will necessitate a reversal of the judgment for the error, without inquiry as to the effect such error may have had upon the result of the trial. (Code Crim. Proc., Art. 685; Paulin v. The State, 21 Texas Ct.

App., 436, and authorities cited.) Where no exception has been reserved at the time, then the next place where the error can be availed of is on the motion for new trial, wherein it is provided by statute as a sufficient ground that “the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” (Code Crim. Proc., Art. 777.) When the matter is not called to the attention of the court in either of the modes mentioned, then the true rule is as stated in Elam v.

The State, 16 Texas Court of Appeals, 34, to the effect that, “if there is a material misdirection of the law as applicable to the case, or a failure to give in charge to the jury the law which was required by the evidence in the case, and such error or omission was calculated under all the circumstances of the case to prejudice the rights of the defendant, this court should for either cause reverse the judgment.” (Citing Bishop v. The State, 43 Texas, 290. See also Lewis v. The State, 18 Texas Ct.

App., 401.) How in the case under consideration, without being told they were the exclusive judges *of the weight of the testimony and the credibility of -the witnesses we can well imagine that the jury might have felt bound by the evidence, no matter how much so ever they might have doubted or disbelieved the witness.

Under the peculiar attitude of this case we believe the court committed a fatal error in omitting to instruct the jury as to their prerogative in passing upon the weight of evidence and credibility of the witnesses, and that appellant in all probability has been seriously prejudiced thereby; and for this error the judgment is .reversed and the cause remanded. Opinion delivered November 27, 1886. Reversed and remanded.