B. F. Dodson v. The State, 24 Tex. Ct. App. 514

Willson, Judq-e. We are of the opinion that the indictment is sufficient. We find no material error in the charge of the court. But we are clearly of the opinion that the evidence does not support the conviction. Although the witness Rosa, with whom the incestuous intercourse is alleged to have been committed, states that she did not consent to the intercourse, it is very clear from her testimony that she made no serious, determined or positive resistance to it.

Her testimony, taken in connection with the other facts in evidence, shows conclusively, we think, that if the crime of incest was committed upon her by the defendant, she was a principal in the crime. Her testimony, therefore, was that of an accomplice, and insufficient, without corroboration, to sustain a conviction.

There is not a particle of evidence in the record which ■corroborates, in any material respect, the testimony of the witness Eosa, while, on the other hand, her statements are strongly disproved by circumstances, and her credibility is made doubtful by the testimony of several witnesses who state that her reputation both for veracity and. chastity is bad. We think the court erred in refusing to grant the defendant a new trial, upon the ground that the evidence did not support the verdict. Opinion delivered December 17, 1887. The judgment is reversed and the cause is remanded. Reversed and remanded.

COURT OF APPEALS OF TEXAS, GALVESTON TERM, 1888.