The opinion
OH BEHEAKIHG.
February 5, 1919.
MORROW, Judge.
We can not, in view of the record, recede from the conclusion expressed in the original opinion, that the admission of the other acts of intercourse, was not error. Supplementing the original opinion on the subject we remark that there was some confusion in the evidence as to the date of the first act of intercourse, some testimony putting it in May preceding the birth of the child in February. The subsequent acts introduced were properly received as explaining the birth of the child and the date thereof. Practically the same conclusion was expressed in Hinman v. State, 59 Texas Crim. Rep., 32 .
The charge on accomplice testimony contained the following:
"A • conviction can. not be had upon the testimony of an accomplice unless the jury first believes the accomplice’s evidence is true, and that it shows the defendant is guilty, and then you can not convict, unless the accomplice’s testimony is corroborated by other evidence connecting the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, and the accomplice can not corroborate her testimony by her own statements. The corroboration must be both as to the sexual intercourse and the promise of marriage.”
The charge also explained to the jury what the meaning of accomplice was and stated to them that the prosecutrix was an accomplice. The charge is not justly subject to the criticism that it- authorized conviction if they believed that the testimony of the prosecutrix was true. It required that they must believe not only that the testimony of the prosecutrix was true, but that it showed defendant’s guilt; and further, that it would not then authorize a conviction unless it was corroborated by other evidence connecting defendant with the offense charged; further, that the corroboration must not only show the commission of the offense
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and must come from other testimony than that of the accomplice, but it must relate to both the sexual intercourse and the promise of marriage.
We are referred to King v. State, 57 Texas Crim. Rep., 370 ; Murphy v. State, 65 Texas Crim. Rep., 55 , 143 S. W. Rep., 618 ; Slaughter v. State, 76 Texas Crim. Rep., 157 , 174 S. W. Rep., 581 . A charge not differing in any substantial manner from that given in this case was approved in each of the cases, except that of Slaughter v. State, and in that case the charge given was approved, and the dissenting opinion was based on the fact that the charge might be construed as instructing the jury that no corroboration was required except as to the act of intercourse.
From the Murphy case we quote as follows:
“The defendant also complains of the following paragraph of the court’s charge: TTou are instructed that under" the law of witness Lillian Jakeman is an accomplice. Mow you can not convict the defendant upon her testimony alone, unless you first believe her testimony is true and that it shows the defendant is guilty of the offens'e charged in the indictment, and even then you can not convict the defendant upon said testimony, unless you further believe that there is other testimony tending to connect the defendant with the offense charged.’ This charge is not subject to the criticism leveled at it in the motion for a new trial, but it is in accordance with the form laid down by this court in the case of Campbell v. State, 57 Texas Crim. Rep., 302 , 123 S. W. Rep., 583 , and approved in King v. State, 57 Texas Crim. Rep., 370 , 123 S. W. Rep., 135 , and Brown v. State, 57 Texas Crim. Rep., 576 , 124 S. W. Rep., 101 .”
That the charge given in this case furnishes no just ground for complaint will be apparent from the case of Brown v. State, 57 Texas Crim. Rep., 576 , and others mentioned in the above quotation.
The motion is overruled.
Overruled.