This is the second appeal of this case. The opinion of the court on the first appeal will be found in 53 Tex. Crim. 202. The trial from which this appeal results was had in the District Court of Ellis County on February first of this year, and resulted in a verdict of guilty, in which appellant's punishment was assessed at confinement in the penitentiary for a period of five years.
We deem it unnecessary to make any detailed statement of the facts. It appears in evidence that prosecutrix, Ida Dutton, was born on the 29th day of August, 1892. Her testimony is to the effect that the act of intercourse, which is the basis of the prosecution, took place between herself and appellant about the first of November, 1905. Appellant was at the time a man some 43 or 44 years of age. He had married early in life a sister of the father of the prosecuting witness. This wife, it seems, had died, however, some years before this, and he had married again, and was a married man living with his wife at the time of the alleged rape. The evidence further shows that appellant was a farmer living some five or six miles from Waxahachie, and not very far from prosecutrix. Her father, it seems, was an improvident and somewhat thriftless man, a tenant on a farm near where appellant lived. Originally he had lived in Alabama, and had come to Texas in 1896 at the suggestion and by the aid of appellant, and had stayed with him some month or six weeks when he first came to Texas. The evidence justifies the conclusion that in the spring of 1905 appellant became very much infatuated with Ida Dutton. It is in evidence that he carried her to Waxahachie frequently, and bought all sorts of articles for her, consisting of clothing, stockings, shoes, slippers and other articles of clothing, and was persistent and assiduous in his attentions to her. The evidence shows that once or twice he had carried her to Ennis, and soon after the act of intercourse testified to had gone with her father and herself to the Dallas fair. A number of letters were read in evidence which, while somewhat guardedly written, are only consistent with the idea of a foolish affection for this young girl, as well as apparent jealousy of some boys or young men in the neighborhood who, during the year 1906, had begun to pay her some attention. Ida Dutton testified that about the first of November, 1905, one night while returning from Waxahachie, in Mustang bottom, while in the buggy, appellant had intercourse with her over her protest and despite her remonstrance, and that she had never had intercourse with anyone else before this. This is denied by appellant. Ida Dutton made no outcry or gave any information concerning the outrage, but continued her relations and social intercourse with appellant, and he continued his attentions to her in very much the same way as he had theretofore done. Early in 1906, the father of prosecutrix, with his family, moved to near Midlothian, some considerable distance from where appellant lived. The evidence shows that appellant helped the parties to move, and went with one load of their goods in a wagon alone with prosecutrix to the place to which Mr. Dutton was moving, and that the parties stayed one night at the house of a
Mr. Lane. After this removal to Midlothian the evidence shows that appellant went with prosecutrix to Waxahachie a number of times, and his relations continued up to about June, 1906. The testimony shows that in September, 1906, the mother of prosecutrix claimed to have had a dream, in which dream it was revealed to her that prosecutrix had been delivered of a child, and that it favored appellant, and she told prosecutrix of this dream and insisted that there had been something wrong in their relations. This prosecutrix repeatedly denied, and her mother finally said to her she knew that she had had intercourse with appellant, and that if she was ashamed to tell it, that she, the mother, would put something over her head, and that prosecutrix then got behind the door and admitted the act of intercourse which is the basis of this prosecution. In explanation of her not telling the mother Ida Dutton says that she did not want to tell them; she was young, and did not know anything like this would ever come up; that she just thought it would be a reflection and disgrace to her and that would be all; that she did not know such matters were carried into court. It also appeared in evidence that, probably during 1906, appellant went with another upon the note of Mr. Dutton for a considerable sum, and there was some claim that Dutton had sold a horse covered by mortgage to secure this indebtedness, and that in view of the unpleasantness growing out of this transaction, that appellant took from Mr. Dutton a pair of mules which he had theretofore loaned him, and the conclusion is sought to be established that this prosecution resulted from the ill-will growing out of these transactions, and it is also intimated that it was designed to extort money from appellant. There was no substantial issue made on the question of prosecutrix' age. There are a number of questions raised on this appeal, some of which did not appear on the former appeal, the most important of which we will notice.
1. Among other things, the State proved by Ida Dutton, as well as by appellant, over his protest, that he was at the time of the act of intercourse which is made the basis of this prosecution, a married man. This was at the time objected to, and is now assigned as error. The objection appears in the statement of facts, and is to the effect that the question was immaterial and prejudicial to the defendant. It will be noted this objection is very general, but if sufficient to raise the question, we think, under the facts of this case, the action of the court in permitting this testimony was not erroneous. The record does not indicate on what ground this testimony was admitted, but it was evidently admissible on this theory: The statement of facts shows, and the proof is conclusive, both growing out of the nature of their relations and the correspondence, that appellant was as devoted and attentive to this young girl as the most ardent lover could or would have been. If he had been a single man these attentions would have been consistent with an innocent purpose, and be justified on the ground that they were such as any honorable man might have shown a good
woman whom he loved and whom he expected to marry. In view, however, of the fact that appellant was a married man, and, therefore, the legal bar which stood between any honorable relations with the prosecutrix, it was a circumstance tending to show the nature and character of his relations, and that by the attentions, gifts, conversations, and his general conduct, that it was his purpose to seduce and corrupt this young girl. There are cases where it has been held error to admit proof that a defendant is a married man. Such is the case of Smith v. State, 44 Tex.Crim. Rep., 68 S.W. Rep., 995, and also the same case in 74 S.W. Rep., 557. It should be remembered, however, that in the Smith case it appeared that the intercourse was not only abundantly proven, as the court says, by positive evidence, but was admitted. In that case it also appears that the verdict was for seventy-five years, which raised a reasonable inference of prejudice. In this case the proof of intercourse rested upon the testimony of prosecutrix, and was distinctly and vehemently denied by appellant.
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This is the second appeal of this case. The opinion of the court on the first appeal will be found in 53 Tex. Crim. 202. The trial from which this appeal results was had in the District Court of Ellis County on February first of this year, and resulted in a verdict of guilty, in which appellant's punishment was assessed at confinement in the penitentiary for a period of five years.
We deem it unnecessary to make any detailed statement of the facts. It appears in evidence that prosecutrix, Ida Dutton, was born on the 29th day of August, 1892. Her testimony is to the effect that the act of intercourse, which is the basis of the prosecution, took place between herself and appellant about the first of November, 1905. Appellant was at the time a man some 43 or 44 years of age. He had married early in life a sister of the father of the prosecuting witness. This wife, it seems, had died, however, some years before this, and he had married again, and was a married man living with his wife at the time of the alleged rape. The evidence further shows that appellant was a farmer living some five or six miles from Waxahachie, and not very far from prosecutrix. Her father, it seems, was an improvident and somewhat thriftless man, a tenant on a farm near where appellant lived. Originally he had lived in Alabama, and had come to Texas in 1896 at the suggestion and by the aid of appellant, and had stayed with him some month or six weeks when he first came to Texas. The evidence justifies the conclusion that in the spring of 1905 appellant became very much infatuated with Ida Dutton. It is in evidence that he carried her to Waxahachie frequently, and bought all sorts of articles for her, consisting of clothing, stockings, shoes, slippers and other articles of clothing, and was persistent and assiduous in his attentions to her. The evidence shows that once or twice he had carried her to Ennis, and soon after the act of intercourse testified to had gone with her father and herself to the Dallas fair. A number of letters were read in evidence which, while somewhat guardedly written, are only consistent with the idea of a foolish affection for this young girl, as well as apparent jealousy of some boys or young men in the neighborhood who, during the year 1906, had begun to pay her some attention. Ida Dutton testified that about the first of November, 1905, one night while returning from Waxahachie, in Mustang bottom, while in the buggy, appellant had intercourse with her over her protest and despite her remonstrance, and that she had never had intercourse with anyone else before this. This is denied by appellant. Ida Dutton made no outcry or gave any information concerning the outrage, but continued her relations and social intercourse with appellant, and he continued his attentions to her in very much the same way as he had theretofore done. Early in 1906, the father of prosecutrix, with his family, moved to near Midlothian, some considerable distance from where appellant lived. The evidence shows that appellant helped the parties to move, and went with one load of their goods in a wagon alone with prosecutrix to the place to which Mr. Dutton was moving, and that the parties stayed one night at the house of a
Mr. Lane. After this removal to Midlothian the evidence shows that appellant went with prosecutrix to Waxahachie a number of times, and his relations continued up to about June, 1906. The testimony shows that in September, 1906, the mother of prosecutrix claimed to have had a dream, in which dream it was revealed to her that prosecutrix had been delivered of a child, and that it favored appellant, and she told prosecutrix of this dream and insisted that there had been something wrong in their relations. This prosecutrix repeatedly denied, and her mother finally said to her she knew that she had had intercourse with appellant, and that if she was ashamed to tell it, that she, the mother, would put something over her head, and that prosecutrix then got behind the door and admitted the act of intercourse which is the basis of this prosecution. In explanation of her not telling the mother Ida Dutton says that she did not want to tell them; she was young, and did not know anything like this would ever come up; that she just thought it would be a reflection and disgrace to her and that would be all; that she did not know such matters were carried into court. It also appeared in evidence that, probably during 1906, appellant went with another upon the note of Mr. Dutton for a considerable sum, and there was some claim that Dutton had sold a horse covered by mortgage to secure this indebtedness, and that in view of the unpleasantness growing out of this transaction, that appellant took from Mr. Dutton a pair of mules which he had theretofore loaned him, and the conclusion is sought to be established that this prosecution resulted from the ill-will growing out of these transactions, and it is also intimated that it was designed to extort money from appellant. There was no substantial issue made on the question of prosecutrix' age. There are a number of questions raised on this appeal, some of which did not appear on the former appeal, the most important of which we will notice.
1. Among other things, the State proved by Ida Dutton, as well as by appellant, over his protest, that he was at the time of the act of intercourse which is made the basis of this prosecution, a married man. This was at the time objected to, and is now assigned as error. The objection appears in the statement of facts, and is to the effect that the question was immaterial and prejudicial to the defendant. It will be noted this objection is very general, but if sufficient to raise the question, we think, under the facts of this case, the action of the court in permitting this testimony was not erroneous. The record does not indicate on what ground this testimony was admitted, but it was evidently admissible on this theory: The statement of facts shows, and the proof is conclusive, both growing out of the nature of their relations and the correspondence, that appellant was as devoted and attentive to this young girl as the most ardent lover could or would have been. If he had been a single man these attentions would have been consistent with an innocent purpose, and be justified on the ground that they were such as any honorable man might have shown a good
woman whom he loved and whom he expected to marry. In view, however, of the fact that appellant was a married man, and, therefore, the legal bar which stood between any honorable relations with the prosecutrix, it was a circumstance tending to show the nature and character of his relations, and that by the attentions, gifts, conversations, and his general conduct, that it was his purpose to seduce and corrupt this young girl. There are cases where it has been held error to admit proof that a defendant is a married man. Such is the case of Smith v. State, 44 Tex.Crim. Rep., 68 S.W. Rep., 995, and also the same case in 74 S.W. Rep., 557. It should be remembered, however, that in the Smith case it appeared that the intercourse was not only abundantly proven, as the court says, by positive evidence, but was admitted. In that case it also appears that the verdict was for seventy-five years, which raised a reasonable inference of prejudice. In this case the proof of intercourse rested upon the testimony of prosecutrix, and was distinctly and vehemently denied by appellant. We think in the Smith case the opinion of the court may well be justified and supported, but in a case like this it seems to us that on reason it became not only admissible, but highly important, to prove the fact that appellant was at the date and time of the intercourse a married man, as lending support to the State's contention, and as evidence of a line of conduct out of harmony with any innocent purpose.
2. On the trial proof was offered by the State of attentions, visits, journeys with prosecutrix, and purchases for her both before and after the act of intercourse. This was objected to on the ground that matters occurring between the parties prior to the alleged rape, but having no connection with it, are immaterial and irrelevant, and inadmissible in evidence, and that they are not admissible even as matters of inducement. The contention is also made that matters and things occurring after the alleged offense was committed, not connected with the offense, and of an inflammatory nature, or showing mistreatment, are wholly immaterial and inadmissible in evidence. If it be granted that the testimony is not connected with the offense, and had no relation thereto, the objection should be sustained, but we think that these matters were so directly and intimately connected with the act of intercourse as to be clearly admissible. It should be stated that no act of intercourse except the one alleged in the indictment was permitted to be proved in such manner as could possibly furnish the basis of conviction for rape. Acts of attention and fondness both before and after the act of intercourse were admitted. These prior acts were admissible as affecting the probability of the act of intercourse, either with or without the consent of prosecutrix, and as tending to show the motive and purpose of appellant, and such seductive acts and purposes as to make and render the prosecutrix an easy, if not willing, subject of his lust. The subsequent acts of fondness and attention were aqually admissible to show the ascendency which appellant
acquired over the mind of prosecutrix, his influence with her, and as explanatory of her silence. This was in substance held on the former appeal, where it is said: "This character of testimony, showing merely intimacy and long-continued association, is admissible. As heretofore held by this court, any testimony or other acts of illicit intercourse would not be admissible than the one proved in the case then on trial, but it is clearly permissible for the State to show undue familiarity, and the circumstances under which appellant and prosecutrix were thrown and associated together." This language is used in connection with proof of the fact that appellant was a married man, and her uncle. The reasoning of the Smith case on the first appeal, 68 S.W. Rep., 995, clearly supports this proposition. In that case it is said:
"In support of the State's contention that said testimony was admissible, we are referred to the cases of Hamilton v. State,36 Tex. Crim. 372, 37 S.W. 431, and Manning v. State,43 Tex. Crim. 302, 65 S.W. Rep., 920. In Hamilton's case, the acts introduced in evidence were prior in point of time to the act for which appellant was being prosecuted. So the question there was not raised. In Manning's case, the acts introduced in evidence were shortly after the alleged act for which appellant was being tried. The objection there urged, however, was not that the acts were subsequent, but that they related to other and distinct offenses. The court in said case held the testimony was admissible as being transactions between the same parties, and tending to show an intimacy and familiarity between them which, with other circumstances, would tend to show the guilt of appellant, as to the transaction charged against him in the indictment. This, as we understand it, is in accord with the authorities. Williams v. State, 8 Humph., 583; State v. Knapp, 45 N.H., 148; State v. Walters, 45 Iowa 389. But all these cases relate to prior acts, and not to acts or conduct occurring subsequent to the charge in the indictment. Whart. Cr. Ev., section 35, lays down the proposition in general terms that, `in prosecutions for adultery or for illicit intercourse of any class, evidence is admissible of sexual acts between the same parties prior to, or, when indicating continuousness of illicit relations, even subsequent to the act specifically under trial. Prior sexual attempts on the same woman are admissible under the same limitations on a trial of rape.' We have examined the authorities, and, so far as we are aware, there is no case where the party was being tried for rape in which subsequent acts to that charged in the indictment were admitted in evidence. But it is urged by the State that rape of a girl under fifteen years of age, with her consent, is, as to the act of carnal intercourse, analogous to cases of adultery and incest, and that the rule with reference to the admission of testimony in such cases is applicable here; that is, that any testimony which would tend to show familiarity between the parties involving like offenses not too remote, though subsequent, would be admissible in evidence
as a circumstance tending to show the likelihood that appellant committed the offense charged against him. We confess that the reasons for the admissibility of such testimony in the one case seem equally cogent in the other. Burnett v. State,32 Tex. Crim. 86, 22 S.W. 47; and particularly, see Bish. St. Crimes, section 682. However, as stated before, no authority can be found extending this doctrine to cases of rape; and we apprehend it will be found that, even in incest and adultery cases, being continuous offenses, such testimony is admissible only as tending to solve some controverted issue."
And the testimony seems to have been rejected, and perhaps so properly in that case, on the ground that the act of carnal intercourse was abundantly proved by positive testimony on the part of the State, and not only not denied by appellant, but admitted by him. So that it is said: "The fact of subsequent carnal intercourse between the same parties would serve to shed no light upon the truth of the allegation in the indictment, but it would serve the purpose, in the minds of the jury, of aggravating the punishment of appellant for the offense proven against him." It seems also in that case to have been held prejudicial in that it probably operated in the minds of the jury to enhance the punishment inflicted by their verdict.
3. A number of other questions are raised with reference to the admissibility of testimony, challenges to the correctness of the court's charge and complaining of the argument of the county attorney. These matters we have carefully investigated, and have found no error in respect to any of them.
4. The only other question remaining to be noticed is the sufficiency of the evidence. It has been held from the beginning that a conviction for rape may be had on the uncorroborated testimony of the victim of such an outrage. In determining, therefore, whether in a given case the verdict of the jury is supported by the evidence, we must, from the entire record, determine each case according to its particular facts. In this case appellant has twice been convicted by the jury. This verdict has received the approval of the trial court, who is charged with the duty, under his oath, of setting aside the verdict if, in his judgment, any injustice has been done appellant. If the testimony of Ida Dutton is to be believed, aided and supported by the conduct of appellant, and in the light of the correspondence in the record, the jury were well justified in finding him guilty. Her credibility was a matter for the jury. We ought not to, and can not, interfere.
Finding no error in the record, the judgment of conviction is in all things affirmed.
Lane, Special Judge, concurring.
McCord, Judge, disqualified.
Davidson, Presiding Judge, dissents.
Affirmed.
ON REHEARING. June 21, 1911.