Barrett v. State (55 Tex. Crim. 182, 1909)

RAMSEY, Judge.

The appellant was convicted in the court below on a charge of incest and his punishment' assessed at confinement in the penitentiary for two- years. The prosecuting witness, Mrs. Lee Watson (nee Lee Barrett) testified to facts which, if true, would have made appellant guilty beyond doubt. A number of questions are raised and grounds urged why this judgment of conviction should be reversed.

1. Among other things, it is urged that the indictment is insufficient, in that it is not alleged distinctly and unequivocally that appellant and prosecutrix were not legally married; nor is it alleged that at the time of the alleged incestuous intercourse, that appellant had knowledge of such relationship. We think, by analogy, at least, that this question should be decided adversely to appellant. The indictment follows the statute and the intercourse is charged to have been both incestuous and unlawful. In the case of Simon v. State, 31 Texas Crim. Rep., 187, it was held that it was unnecessary to charge that a marriage there alleged to have been, in the prohibited degrees, was entered into knowingly, and it is .said that an indict