Simmons v. State

186 S.W. 325, 79 Tex. Crim. 492, 1916 Tex. Crim. App. LEXIS 182

Opinions

HARPER, Judge.

Appellant was convicted of rape upon his granddaughter, and his punishment assessed at imprisonment for life.

It appears that appellant, the grandfather of Lillie Mae Cox, took the little girl when she was but six years of age and raised her, she being past fifteen at the time of the trial. In her direct examination she testified to a course of conduct covering several years, and testified to acts of intercourse covering two or three years, giving as the last date an act that took place shortly after her fifteenth birthday. Appellant on cross-examination developed the fact, according to the girl’s testimony, that the acts had been continuous, occurring as often as two or three times a week. After the State had closed its case, the appellant filed a motion requiring the State to elect upon which act it would seek to ask for a conviction. The motion was sustained, and the State elected the act testified to as occurring about February 1, 1915, and the court in his charge limited the purpose for which the testimony of other acts could be considered, and also gave three special requested charges by appellant on this issue absolutely limiting the testimony, and instructing the jury they could convict appellant only in the event the offense was committed on the date selected, and that any other acts testified to could be considered only, if considered at all, in passing on whether or not an act of intercourse took place on the date on which the State had elected to prosecute. After the State had elected, the appellant requested the court to instruct the jury not to "consider for any purpose any evidence of an act or acts occurring subsequent to the date selected, and reserved an exception to the failure of the court to give this charge. We so thoroughly discussed this question in Battles v. State, 63 Texas Crim. Rep., 147, we do not deem it necessary to again review the authorities. In this case it is shown that all the acts tend to show and do show but one continuous course of conduct. Mr. Wigmore, in his work on Evidence and late supplement thereto, in section- 398, carefully collates the authorities from all States in the Union, and cites as sustaining the rule obtaining in this court, among other cases, People v. Soto, 11 Cal. App., 431; State v. Sebastian, 81 Conn., 1; Henderson v. State, 19 Idaho, 524; People v. Gray, 251 Ill., 431; State v. Brown, 85 Kan., 418; State v. Sehueller, 120 Minn., 26; Woodruff v. State, 72 Heb., 815; People v. Thompson, 106 U. E. Rep. (N. Y.), 78; Morris v. State, 131 Pac. Rep. (Okla.), 731; State v. Richey, 88 S. C., 239; State v. Rash, 27 S. Dak., 185; Sykes v. State, 112 Tenn., 572; State v. Wellet, 78 Vt., 157; State v. Mobley, 44 Wash., 549, and other cases.

Appellant requested the court to instruct the jury as follows: “You are instructed not to, consider for any purpose the argument of the county attorney wherein he makes the statement that the witness, Lillie Mae Cox, swore that before she went to Dallas the defendant offered her a dollar to tell her mother that Mack DeBoard was the cause of her trouble,” contending there was no testimony in the record upon which to base such remarks. The girl testified, as shown by the statement of facts: “The reason that I told my mother that it was Mack DeBoard, my grandfather (appellant) told me to lay it on Mack. Two or three days before I went to Dallas, while we were heading maize, my grandfather began to cry and asked me for God’s sake when I went to my mother, not to lay it on him; he said he would give me a dollar if I would let Mack do me that way, so if I was in this condition I would lay it on him.” While the exact language used by the county attorney was not used by the girl, yet there is so slight difference in the meaning of the two statements, one could be used as a legitimate deduction of the other.

Appellant desired to prove by Dr. E. F. Hamm that from his knowledge and experience in dealing with young girls it was always the natural desire and impulse of girls to deny the guilt of her. lover and charge some other man with having been the cause of her downfall. We do hot see how" qualifying as an expert physician would render the doctor any more competent to testify to such fact than any other observant man. While the girl admitted she loved Mack DeBord and had been engaged to marry him, yet she also testified that she also loved her grandfather (appellant). Appellant cites no authorities in support of his contention, and we know of none. As to whether such would be the natural inference to be drawn was a question of legitimate argument, and we suppose was made by appellant’s counsel, and the jury was just as capable of passing on such question as a learned expert physician.

The court rejected the bill seeking to complain that juror McClain was an incompetent juror by reason of having expressed an opinion. Attached to the motion for a new trial is the affidavit of Messrs. Ed mondson and Brooks, saying that the juror had expressed an opinion in their presence. The State, in affidavit filed, contested the motion, Hr. McClain swearing he used no such language. By the record it •shows that the court heard evidence on the motion, and the evidence-is before us, but not in such shape- as we can consider it. The term of court at which appellant was convicted adjourned January 29th, while the statement of facts on the motion for a new trial was not filed until April 22nd. It has been the unbroken rule of decision in this court since the rendition of the opinion in Black v. State, 41 Texas Crim. Rep., 980, that such evidence must be preserved by bill filed in term time. The evidence is not reduced to narrative form but is placed in the record in question and answer form, and this is no longer permissible, had it been filed in time. Kemper v. State, 57 Texas Crim. Rep., 375, and cases cited under article 846, Vernon’s Crim. Proc., page 843. However, we will state we have read this evidence, even though in question and answer form, and if we could consider it, the evidence of Messrs. Edmoudson and Brooks shows that if Mr. McClain used the language they attributed to him, it had no reference to this case but to another and different case. The testimony of Mr. McClain and Mr. Butler would authorize the trial judge to find that no such language-was used.

There is an allegation in the motion alleging that the jury heard other evidence than that adduced on the witness stand after their retirement. There is no affidavit attached to the motion for a new trial in support of such an allegation, and no evidence we can consider to sustain such an allegation.

The only other bill in the record alleges that after the jury had been empaneled, but before the indictment was read or any evidence; introduced, the defendant stepped just outside of the door of the-courtroom and spoke to his son. The court at this time was instructing the jury as to their duties. The defendant has the right, of course, to be present during all the proceedings had on his trial, but appellant- and his counsel, while aware of the proceedings, reserved no exception, at the time, and did not complain of the matter until after verdict. The court in approving the bill states that the defendant was in such proximity to him and the jury, “that he could and would have heard all that was said.” Under such circumstances the bill presents no error.

The other questions sought to be raised present no error, and the judgment is affirmed.

Affirmed,