Burnett v. State

Incest — Evidence as to Sexual Acts. — In prosecutions for incest or for cognate offenses of any class, evidence is admissible of sexual acts between the same parties prior to, or, when indicating continuousness of illicit relations, subsequent to, the act specifically under trial.

Appeal from the District Court of Gonzales. Tried below before Hon. AT. Kennon, Special Judge. The indictment charged appellant, James Burnett, and his daughter, Jeanett Burnett, jointly with incest. At the trial appellant was convicted, and his punishment was assessed at two years in the penitentiary, and Jeanett Burnett, the codefendant, was found not guilty and discharged. Defendant’s bill of exceptions was raised to the action of the court in permitting the witness Betty Rogers, over his objections, to testify to an act of carnal intercourse between them (the parties) witnessed by her at a different time and place to the act testified to by the witness Dan Mixon as having been seen by him; the objection being that the second act was a separate and distinct offense from the one charged by the State, and the testimony was calculated to prejudice the defendant before the jury.