I can not concur in the affirmance of this case, and will state my reasons.
In the first place the evidence is very weak, if in fact sufficient to sustain a conviction. Appellant was indicted, charged with the offense of rape on his daughter, Viola, when thirteen years of age. Viola swears most positively that her father had never had sexual knowledge of her. She was called as a witness by the State, and in answer to an inquiry stated: "He (my father) did not have intercourse with me." What she testified before the grand jury is not in the record
before us, and if it were (whatever that testimony may have been) it would be no evidence of appellant's guilt. He can only be convicted on evidence given by the witnesses on this trial, and the girl alleged to have been raped most emphatically denies it. However, five members of the grand jury say that appellant was before that body twice, and when first before it he admitted having penetrated the girl, although denying that there was any emission. They say when he came back the second time he denied having penetrated the girl, but admitted improper fondling of her person. The foreman of the grand jury and another member of that body say they were present when appellant was before that body, and they testify that on both occasions he denied having sexual intercourse with the girl. So the matter of whether or not appellant made a confession before the grand jury is a disputed fact, but to concede that on this conflict of testimony a jury would be authorized to find that he admitted the fact, still it has always been held that a confession alone is insufficient to sustain a conviction. Harris v. State, 28 Texas Crim. App., 308; Brady v. State, 32 Tex.Crim. Rep.; Nolan v. State,60 Tex. Crim. 5, 129 S.W. Rep., 1108; Layton v. State,52 Tex. Crim. 513; Ellison v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 542; Follis v. State, 51 Tex.Crim. Rep., and cases cited in these opinions.
It is also the law, that while a confession alone is insufficient to sustain a conviction for crime, yet it may be considered in connection with other facts and circumstances in the case in proving the corpus delicti. Kugadt v. State,38 Tex. Crim. 681, and cases cited in Branch's Crim. Law, sec. 235. We then must look to the record for other facts and circumstances in aid of the confession, which tend to show that a crime has been committed, and appellant guilty of the crime, if a crime is shown. It must be remembered that the girl alleged to have been raped emphatically denies that she was raped by appellant. Then what other matters are in the record, outside of the confession, which tend to show that a crime has been committed? The State called Dr. Campbell as a witness, and he testified he examined Viola and found that her hymen had been ruptured. If this was all of the doctor's testimony it might tend to show that someone had had carnal knowledge of the girl, but that is not all of his testimony on direct examination. He says the rupture could have been caused by masturbation, by use of the fingers, by accident, or other causes, and then adds: "I found she had a very smallvagina; I do not think it was possible for the defendant topenetrate her past the vagina without extending the canal. I donot think it would be possible for a male organ to penetrate assmall a vagina as she had." This testimony was all given on direct examination, without reference to the cross-examination, and if we take the testimony of this expert witness, he says from an examination of the girl he does not think she had been penetrated by the male organ of a man. And this is all the testimony, outside of the alleged confession, to prove that the girl had ever been penetrated by any man. I am inclined to think it insufficient to show
that the crime had in fact been committed, in the face of the positive denial of the girl alleged to have been wronged. But concede that, weak though it be, it is sufficient to show that a crime had been committed, what is there in the record to show that appellant was the criminal outside of the alleged confession? The only fact proven was that he sometimes slept in the same bed with his thirteen-year-old daughter. The mother says she also slept in the same bed with them, but the daughter says her father sometimes alone slept in the same bed with her. If the daughter is correct, that he sometimes alone slept with her, then this gave an opportunity, but nothing more, and the daughter says he did not avail himself of the opportunity, and this is proven not by appellant but by the State on direct examination of the girl. That a father sleeps in the same bed with his thirteen-year-old daughter may be a suspicious circumstance, but certainly nothing more, if that. These are all the facts in the record that can be construed to aid the alleged confession in proving that a crime has been committed and appellant the criminal, and the writer extremely doubts the sufficiency of such testimony. At least it is very weak, and if improper testimony was admitted, which might or could have influenced the jury, then certainly a verdict based upon so unsatisfactory evidence ought not to be permitted to stand. Appellant introduced Lee Chancelor and Hugh Henry, who say they had lived in the same community with appellant for twenty-two years, and Rev. J.W. Collin, pastor of the Baptist church, who says he has lived in the same community for four years, and they all swear that his reputation as a good, moral, law-abiding man is good. On cross-examination of Messrs. Chancelor and Henry, the State asked them if some thirteen years ago appellant had not been charged with having had intercourse with a niece They said such rumor had been in circulation, but at appellant's request it was investigated by his church and it was found without foundation, and that James Scroggins, who had put the report in circulation, wrote a letter to appellant in which he admitted he wronged appellant in making such a charge, and asked the forgiveness of appellant. The State having thus fallen down on proving anything hurtful to appellant's reputation prior to the time this charge was brought against him, was permitted, over the objection of appellant, to prove that since this charge had been brought against him "they had heard that appellant had admitted he had had intercourse with his other two daughters, Mrs. Beshear and Mrs. Dean, in their childhood days." I do not think what they had heard since this charge had been brought against him about his other two daughters was admissible, and it was of such a nature that it would have its weight with the jury, and could not be controlled by the charge of the court. It was inadmissible for any purpose. What they had heard about reports in circulation since this prosecution was begun could not and should not have been permitted to affect his reputation for all the years prior to the date of the institution of this prosecution. Such reports could and often are put in circulation by maliciously inclined persons, after prosecution is begun,
and we have always understood the rule to be that as affecting the source of knowledge and information of the witness, it is as to knowledge of acts and conduct prior to the institution of the prosecution that can be inquired into, and it is not reports, etc., growing out of the prosecution that become admissible as affecting the knowledge of the witness who testifies that prior to the institution of this prosecution the reputation of the person on trial has been good.
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I can not concur in the affirmance of this case, and will state my reasons.
In the first place the evidence is very weak, if in fact sufficient to sustain a conviction. Appellant was indicted, charged with the offense of rape on his daughter, Viola, when thirteen years of age. Viola swears most positively that her father had never had sexual knowledge of her. She was called as a witness by the State, and in answer to an inquiry stated: "He (my father) did not have intercourse with me." What she testified before the grand jury is not in the record
before us, and if it were (whatever that testimony may have been) it would be no evidence of appellant's guilt. He can only be convicted on evidence given by the witnesses on this trial, and the girl alleged to have been raped most emphatically denies it. However, five members of the grand jury say that appellant was before that body twice, and when first before it he admitted having penetrated the girl, although denying that there was any emission. They say when he came back the second time he denied having penetrated the girl, but admitted improper fondling of her person. The foreman of the grand jury and another member of that body say they were present when appellant was before that body, and they testify that on both occasions he denied having sexual intercourse with the girl. So the matter of whether or not appellant made a confession before the grand jury is a disputed fact, but to concede that on this conflict of testimony a jury would be authorized to find that he admitted the fact, still it has always been held that a confession alone is insufficient to sustain a conviction. Harris v. State, 28 Texas Crim. App., 308; Brady v. State, 32 Tex.Crim. Rep.; Nolan v. State,60 Tex. Crim. 5, 129 S.W. Rep., 1108; Layton v. State,52 Tex. Crim. 513; Ellison v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 542; Follis v. State, 51 Tex.Crim. Rep., and cases cited in these opinions.
It is also the law, that while a confession alone is insufficient to sustain a conviction for crime, yet it may be considered in connection with other facts and circumstances in the case in proving the corpus delicti. Kugadt v. State,38 Tex. Crim. 681, and cases cited in Branch's Crim. Law, sec. 235. We then must look to the record for other facts and circumstances in aid of the confession, which tend to show that a crime has been committed, and appellant guilty of the crime, if a crime is shown. It must be remembered that the girl alleged to have been raped emphatically denies that she was raped by appellant. Then what other matters are in the record, outside of the confession, which tend to show that a crime has been committed? The State called Dr. Campbell as a witness, and he testified he examined Viola and found that her hymen had been ruptured. If this was all of the doctor's testimony it might tend to show that someone had had carnal knowledge of the girl, but that is not all of his testimony on direct examination. He says the rupture could have been caused by masturbation, by use of the fingers, by accident, or other causes, and then adds: "I found she had a very smallvagina; I do not think it was possible for the defendant topenetrate her past the vagina without extending the canal. I donot think it would be possible for a male organ to penetrate assmall a vagina as she had." This testimony was all given on direct examination, without reference to the cross-examination, and if we take the testimony of this expert witness, he says from an examination of the girl he does not think she had been penetrated by the male organ of a man. And this is all the testimony, outside of the alleged confession, to prove that the girl had ever been penetrated by any man. I am inclined to think it insufficient to show
that the crime had in fact been committed, in the face of the positive denial of the girl alleged to have been wronged. But concede that, weak though it be, it is sufficient to show that a crime had been committed, what is there in the record to show that appellant was the criminal outside of the alleged confession? The only fact proven was that he sometimes slept in the same bed with his thirteen-year-old daughter. The mother says she also slept in the same bed with them, but the daughter says her father sometimes alone slept in the same bed with her. If the daughter is correct, that he sometimes alone slept with her, then this gave an opportunity, but nothing more, and the daughter says he did not avail himself of the opportunity, and this is proven not by appellant but by the State on direct examination of the girl. That a father sleeps in the same bed with his thirteen-year-old daughter may be a suspicious circumstance, but certainly nothing more, if that. These are all the facts in the record that can be construed to aid the alleged confession in proving that a crime has been committed and appellant the criminal, and the writer extremely doubts the sufficiency of such testimony. At least it is very weak, and if improper testimony was admitted, which might or could have influenced the jury, then certainly a verdict based upon so unsatisfactory evidence ought not to be permitted to stand. Appellant introduced Lee Chancelor and Hugh Henry, who say they had lived in the same community with appellant for twenty-two years, and Rev. J.W. Collin, pastor of the Baptist church, who says he has lived in the same community for four years, and they all swear that his reputation as a good, moral, law-abiding man is good. On cross-examination of Messrs. Chancelor and Henry, the State asked them if some thirteen years ago appellant had not been charged with having had intercourse with a niece They said such rumor had been in circulation, but at appellant's request it was investigated by his church and it was found without foundation, and that James Scroggins, who had put the report in circulation, wrote a letter to appellant in which he admitted he wronged appellant in making such a charge, and asked the forgiveness of appellant. The State having thus fallen down on proving anything hurtful to appellant's reputation prior to the time this charge was brought against him, was permitted, over the objection of appellant, to prove that since this charge had been brought against him "they had heard that appellant had admitted he had had intercourse with his other two daughters, Mrs. Beshear and Mrs. Dean, in their childhood days." I do not think what they had heard since this charge had been brought against him about his other two daughters was admissible, and it was of such a nature that it would have its weight with the jury, and could not be controlled by the charge of the court. It was inadmissible for any purpose. What they had heard about reports in circulation since this prosecution was begun could not and should not have been permitted to affect his reputation for all the years prior to the date of the institution of this prosecution. Such reports could and often are put in circulation by maliciously inclined persons, after prosecution is begun,
and we have always understood the rule to be that as affecting the source of knowledge and information of the witness, it is as to knowledge of acts and conduct prior to the institution of the prosecution that can be inquired into, and it is not reports, etc., growing out of the prosecution that become admissible as affecting the knowledge of the witness who testifies that prior to the institution of this prosecution the reputation of the person on trial has been good. This, in my opinion, illegal testimony about a report in circulation that appellant had admitted having intercourse with his other two daughters in their childhood days, heard of by the witness in this case for the first time, as shown by this record by anyone since the institution of this prosecution, was of a nature and character to aid otherwise a very weak case for the State, and had it not been permitted to go to the jury, a verdict of guilty might not have been obtained. This question was before this court in Hopperwood v. State, 39 Tex.Crim. Rep., and it was there held:
"Where a defendant is on trial, it is his character prior to the commission of the offense that may be inquired into, and not the character he may have had after the commission of the alleged offense, or what was said about his character after that time. On this subject Mr. Rice, in his work on Evidence (volume 3, page 610), quotes with approval what was said on this subject in Reid v. Reid, 17 New Jersey Equity, 101, as follows: `No rule is better settled or founded on clearer principles than that which excludes all testimony touching reputation founded on opinion expressed post litem motam.' It is true the act charged against the defendant in this case is said to have occurred prior to the commission of the offense for which he was on trial, but the witness had not heard that matter spoken of until after the commission of this offense; and evidently the discussion of the alleged theft in this case caused the other matter to be spoken of. So far as the record shows, these witnesses had not heard of the prior act until after the alleged commission of this offense. They did not previously know that he had ever been accused of any dishonest act. They had never heard anything mentioned of his character in this respect. Evidently such testimony was inadmissible for any purpose."
Again, when the mother was being examined she was asked if her daughter ever made any complaint. The court refused to permit her to answer the question. I think under the record in this case this was error. The doctor had testified the vagina was very small and there could have been no entry without a rupture and laceration occurring, and that soreness and inflammation would ensue If this condition had occurred, a child of the age of this one would certainly complain to the mother of such matters, and that no complaint had ever been made was a circumstance to show that nothing of that kind had occurred.
I also think that the charge requested, that unless they found the confession, if made, was freely and voluntarily made it should not be considered, should have been given. The record discloses that intense ill-will existed between one of appellant's sons-in-law, John Beshear,
and appellant. That this son-in-law was admitted in the grand jury room while appellant was being examined by that body. That this son-in-law had to be disarmed, and while appellant was testifying before the grand jury this son-in-law "got over Mr. Hill and shook his finger in his face." This was not orderly proceedings in the grand jury room, and there is no reason shown why this son-in-law, who was not a member of the grand jury, was allowed to sit with that body, nor why he should be permitted to stand over a witness and shake his finger in his face while being examined, and Mr. Head says Beshear was permitted to propound to appellant questions about other matters while appellant was before the grand jury. Under the circumstances this record discloses, the charge, when requested by appellant, that if a confession was made, unless it was freely and voluntarily made, to disregard it, should have been given.
In my opinion the evidence to sustain a conviction is very weak, if not insufficient to sustain a conviction. It shows the prosecution is the outgrowth of a family row, and taking the record as a whole, I am of the opinion the judgment should be reversed and remanded
Reversed and remanded.