1. Incest — Indictment — Description of Prosecutrix In.
Where an indictment for incest alleges that the accused was the father of one F. W., and that he had carnal knowledge of said F. W., it is not necessary that it should further allege that the said F. W. was a female.
2. Same — Prosecutrix — Accomplice Testimony — Corroboration.
Where an accomplice refuses to testify, or where the testimony of such witness when given does not contribute in the least to the conviction of the accused, the issue of corroboration is not involved.
3. Same — Argument of Counsel.
On a trial for incest, where the accomplice has refused to testify, it would be error for the State's counsel, in any argument, to refer to her refusal to testify, as a criminative fact going to show the guilt of both accused and herself, and in such a state of case it would be the duty of the court to instruct the jury that her failure to testify could not be considered a criminative fact against the accused.
4. Charge of Court — Omission In.
To avail of an omission in charge of the court which is not radical or fundamental, the charge must be excepted to for the omission; or, a pertinent requested instruction supplying the omission should have been refused.
DAVIDSON, JUDGE.
Appellant was convicted of incest with his daughter, and prosecutes this appeal. Motion to quash the indictment was made, because it did not allege that Flora Waggoner was a female, or was the daughter of appellant. It alleges that appellant had carnal knowledge of Flora Waggoner, and that appellant was the father of Flora Waggoner. Was it necessary to the sufficiency of this indictment for it to allege that Flora Waggoner was a female, this not being done directly and specifically? Then, was it necessary to allege that she was his daughter? We think not. See this question discussed and shown to be not necessary by Mr. Bishop in his work on Criminal Procedure (13th Ed.) § 952, and supporting authorities; Battle v. State, 4 Tex.Crim. App. 595. Flora Waggoner was called by the State as a witness, proved the relationship to her father, but declined to further answer questions put by the District Attorney, although she was offered immunity from prosecution for any participancy in the alleged offense. She testified, however, that she was the daughter of appellant, and this was proved by all the witnesses. The statute inhibits a conviction on the testimony of an accomplice unless corroborated. The testimony of Flora Waggoner did not, in the least, contribute to the conviction of appellant, and hence she could not have been corroborated. If counsel for the State had referred to the fact that she had refused to testify as a circumstance to show her guilt, and therefore appellant's guilt, it would have been the duty of the court to have instructed the jury that they could not use this failure on her part as a criminative fact against appellant. This record contains no such matter, and we will presume the argument was conducted properly. Counsel for appellant did not request an instruction that the jury could not look to the failure of this witness to testify as evidence of her guilt, and therefore evidence of appellant's guilt. Nor did counsel except to the charge for this omission. The only objection touching this whole matter is that the Court refused to give special instruction asked by appellant, upon the subject generally, in regard to the corroboration of accomplice testimony. There was no error in refusing this requested instruction. The evidence fully and amply supports the verdict. The judgment is affirmed.
Affirmed.