DAVIDSON, Presiding Judge.
Appellant was convicted of incest with his niece, Miss Effie Skidmore.
1. The State relied upon the testimony of prosecutrix. Hnder her testimony she was an accomplice, having consented to the intercourse about which she testified. Appellant’s testimony is that he was not guilty, and was not intimate with prosecutrix, but that
she was intimate with others, and introduced such evidence along those lines as the court would permit. Testifying in his own behalf, he denied any act of intercourse, and offered testimony, much of which was rejected, going to prove bad conduct on the part of prosecutrix with other men. Over appellant’s objection the State was permitted to introduce evidence of acts of intercourse between prosecutrix and appellant other than that relied upon for conviction. The act relied upon occurred in December. The other acts under her statement occurred during the previous _ months of October and November. We are of opinion this evidence was improperly admitted. It seems from the bill of exceptions the court admitted this testimony under the authority of the recent case of Barrett v. State, 55 Texas Crim. Rep., 182. That case was decided upon the authority of Burnett v. State, 32 Texas Crim. Rep., 86. The Burnett case had been overruled in Clifton v. State, 46 Texas Crim. Rep., 18, and followed in Gillespie v. State, 49 Texas Crim. Rep., 530; Wiggins v. State, 47 Texas Crim. Rep., 538, and French v. State, 47 Texas Crim. Rep., 571. In deciding the Barrett case, supra, this court overlooked the fact that the Burnett case, supra, had been overruled in Clifton v. State, and followed in subsequent cases. We are of opinion that the case of Clifton v. State, and subsequent cases are correct. Incest is not a continuous offense. One act of intercourse is a sufficient predicate upon which .to base a conviction. This has been held, in all of the cases, and may be said to be without exception. And it is necessarily so under the definition of the offense as found in article 349 of the Penal Code. The same rule obtains in rape cases. A single act of rape or incest either if proved is sufficient to justify a conviction. Such is the rule in Texas, and such seems to be the rule in all the States. This rule does not apply, however, to adultery. Under our statute adultery may be constituted in one of two ways, first, by living together, and having intercourse, or by having habitual carnal intercourse without living together. This makes it in a sense a continuous offense. In other words, the definition of adultery has such characteristics that one act is not sufficient unless where the parties are living together. The rule has been laid down and followed in many of the States, that prior acts of illicit intercourse between the parties are inadmissible as corroborative evidence. The office of this corroborative evidence seems to be, under the authorities, to render it probable that by reason of the prior act or acts a party would be the more likely guilty of the act for which he is being tried. This rule has not been followed in all of the States, and the reason for the rule is not founded upon sound principles. Prior acts, under some circumstances, may be admissible, but where the State has made out its case the rule does not obtain. These exceptions are well known to courts and the
profession. This character of evidence introduced through the mouth of prosecutrix certainly could not corroborate her statement, for she is an accomplice, and can not corroborate herself. If the other acts of intercourse between the parties in rape and incest were admissible, then it is a self-evident proposition that the accused has a right to defend against each act introduced, and meet it with such testimony as he can to show that it did not occur. Under this state of case the accused would be authorized to defend against an indefinite number of illicit acts introduced by the State which are in no way connected with the one for which he is being tried, and the trial would stretch out over such transactions for perhaps years. Under these circumstances the trial on the main ease would be lost sight of in introducing evidence pro and con as to the prior acts. Under such state of case appellant would be called upon to answer for such acts of illicit intercourse about which he had no notice in the indictment, and of which he was in no way legally apprised would be used against him; and it would doubtless further result in a conviction on
general principles
instead of for the particular offense alleged against him. This court has for years held, in incest and rape, evidence of prior acts inadmissible, and the decisions place the two offenses in this respect upon the same basis. We believe the rule ought to be in this character of case, and all others, that the accused should be tried for the offense of which he is indicted, and that the State would be prohibited from going out and hunting up the derelictions of a life, or for years, and inject them into the case simply to show the probability, that because he had heretofore been guilty of something, that, therefore, he might be guilty in the case on trial. We think that on sound reasoning and on principle, the decision in Clifton v. State, supra, ánd those cases that follow it are correct and enunciate the correct doctrine. The Barrett case, 55 Texas Crim. Rep., 182, therefore, is overruled. We hold, therefore, upon a review of the whole question, that the rule laid down' in the Clifton case, supra, and those cases that are in accord with and follow it, are correct.
2. The State having introduced evidence of the fact that on the 17th of September prosecutrix gave birth to a child following the intercourse testified by prosecutrix as having occurred the previous month of December, appellant offered evidence to show that during the month of December and during the months of October and November prosecutrix had carnal intercourse with another man. This was rejected by the court, and that ruling is presented for revision. We are of opinion the court was in error. Having introduced the fact that the girl had a child within nine months after she stated appellant had intercourse with her the previous December, appellant had the legal right to show, if he could, that he was not the father of the child. This question was decided in the case of
Bader v. State, at the present term of the court. The usual rule is, where the evidence is clear that the accused had sexual intercourse with prosecutrix, it is immaterial how often other parties may have had intercourse with her or as to who they were. The fact that parties had intercourse with each other who are within the prohibited degrees mentioned in the statute is sufficient to prove the case, and it would make no difference how often the female relative may have had intercourse with other men, but that rule does not apply in this particular case, for the reason the State introduced the fact of the birth of the child as a circumstance. Appellant had the right to prove, under these circumstances, by this character of proof, that another party may have been the father of the child, as a means of meeting this phase of the State’s case. Testimony that is often not admissible as original testimony in behalf of the party offering it, may and does become admissible by reason of the fact that facts and circumstances are introduced against him by the other side.
Free access — add to your briefcase to read the full text and ask questions with AI
DAVIDSON, Presiding Judge.
Appellant was convicted of incest with his niece, Miss Effie Skidmore.
1. The State relied upon the testimony of prosecutrix. Hnder her testimony she was an accomplice, having consented to the intercourse about which she testified. Appellant’s testimony is that he was not guilty, and was not intimate with prosecutrix, but that
she was intimate with others, and introduced such evidence along those lines as the court would permit. Testifying in his own behalf, he denied any act of intercourse, and offered testimony, much of which was rejected, going to prove bad conduct on the part of prosecutrix with other men. Over appellant’s objection the State was permitted to introduce evidence of acts of intercourse between prosecutrix and appellant other than that relied upon for conviction. The act relied upon occurred in December. The other acts under her statement occurred during the previous _ months of October and November. We are of opinion this evidence was improperly admitted. It seems from the bill of exceptions the court admitted this testimony under the authority of the recent case of Barrett v. State, 55 Texas Crim. Rep., 182. That case was decided upon the authority of Burnett v. State, 32 Texas Crim. Rep., 86. The Burnett case had been overruled in Clifton v. State, 46 Texas Crim. Rep., 18, and followed in Gillespie v. State, 49 Texas Crim. Rep., 530; Wiggins v. State, 47 Texas Crim. Rep., 538, and French v. State, 47 Texas Crim. Rep., 571. In deciding the Barrett case, supra, this court overlooked the fact that the Burnett case, supra, had been overruled in Clifton v. State, and followed in subsequent cases. We are of opinion that the case of Clifton v. State, and subsequent cases are correct. Incest is not a continuous offense. One act of intercourse is a sufficient predicate upon which .to base a conviction. This has been held, in all of the cases, and may be said to be without exception. And it is necessarily so under the definition of the offense as found in article 349 of the Penal Code. The same rule obtains in rape cases. A single act of rape or incest either if proved is sufficient to justify a conviction. Such is the rule in Texas, and such seems to be the rule in all the States. This rule does not apply, however, to adultery. Under our statute adultery may be constituted in one of two ways, first, by living together, and having intercourse, or by having habitual carnal intercourse without living together. This makes it in a sense a continuous offense. In other words, the definition of adultery has such characteristics that one act is not sufficient unless where the parties are living together. The rule has been laid down and followed in many of the States, that prior acts of illicit intercourse between the parties are inadmissible as corroborative evidence. The office of this corroborative evidence seems to be, under the authorities, to render it probable that by reason of the prior act or acts a party would be the more likely guilty of the act for which he is being tried. This rule has not been followed in all of the States, and the reason for the rule is not founded upon sound principles. Prior acts, under some circumstances, may be admissible, but where the State has made out its case the rule does not obtain. These exceptions are well known to courts and the
profession. This character of evidence introduced through the mouth of prosecutrix certainly could not corroborate her statement, for she is an accomplice, and can not corroborate herself. If the other acts of intercourse between the parties in rape and incest were admissible, then it is a self-evident proposition that the accused has a right to defend against each act introduced, and meet it with such testimony as he can to show that it did not occur. Under this state of case the accused would be authorized to defend against an indefinite number of illicit acts introduced by the State which are in no way connected with the one for which he is being tried, and the trial would stretch out over such transactions for perhaps years. Under these circumstances the trial on the main ease would be lost sight of in introducing evidence pro and con as to the prior acts. Under such state of case appellant would be called upon to answer for such acts of illicit intercourse about which he had no notice in the indictment, and of which he was in no way legally apprised would be used against him; and it would doubtless further result in a conviction on
general principles
instead of for the particular offense alleged against him. This court has for years held, in incest and rape, evidence of prior acts inadmissible, and the decisions place the two offenses in this respect upon the same basis. We believe the rule ought to be in this character of case, and all others, that the accused should be tried for the offense of which he is indicted, and that the State would be prohibited from going out and hunting up the derelictions of a life, or for years, and inject them into the case simply to show the probability, that because he had heretofore been guilty of something, that, therefore, he might be guilty in the case on trial. We think that on sound reasoning and on principle, the decision in Clifton v. State, supra, ánd those cases that follow it are correct and enunciate the correct doctrine. The Barrett case, 55 Texas Crim. Rep., 182, therefore, is overruled. We hold, therefore, upon a review of the whole question, that the rule laid down' in the Clifton case, supra, and those cases that are in accord with and follow it, are correct.
2. The State having introduced evidence of the fact that on the 17th of September prosecutrix gave birth to a child following the intercourse testified by prosecutrix as having occurred the previous month of December, appellant offered evidence to show that during the month of December and during the months of October and November prosecutrix had carnal intercourse with another man. This was rejected by the court, and that ruling is presented for revision. We are of opinion the court was in error. Having introduced the fact that the girl had a child within nine months after she stated appellant had intercourse with her the previous December, appellant had the legal right to show, if he could, that he was not the father of the child. This question was decided in the case of
Bader v. State, at the present term of the court. The usual rule is, where the evidence is clear that the accused had sexual intercourse with prosecutrix, it is immaterial how often other parties may have had intercourse with her or as to who they were. The fact that parties had intercourse with each other who are within the prohibited degrees mentioned in the statute is sufficient to prove the case, and it would make no difference how often the female relative may have had intercourse with other men, but that rule does not apply in this particular case, for the reason the State introduced the fact of the birth of the child as a circumstance. Appellant had the right to prove, under these circumstances, by this character of proof, that another party may have been the father of the child, as a means of meeting this phase of the State’s case. Testimony that is often not admissible as original testimony in behalf of the party offering it, may and does become admissible by reason of the fact that facts and circumstances are introduced against him by the other side. The State having relied upon the fact that the birth of the child was the result of the intercourse between appellant and his niece in December, which intercourse was denied by him, he could prove by the same character of testimony relied upon by the State that another party was the father of the child. This has been the rule in Texas since the case' of Dubose v. State, 10 Texas Crim. App., 230. That case has been followed with an unbroken line of decisions. Hart v. State, 15 Texas Crim. App., 202; Kunde v. State, 22 Texas Crim. App., 65; McInturf v. State, 20 Texas Crim. App., 335, and cases there cited; Johnson v. State, 49 Texas Crim. Rep., 314; Kirby v. State, 49 Texas Crim. Rep., 517; Coffelt v. State, 19 Texas Crim. App., 436; Murphy v. State, 36 Texas Crim. Rep., 24; Harrison v. State, 47 Texas Crim. Rep., 393.
3. Appellant offered to prove by the witness Frank Hill that during the months of September, October, November and December, he had intercourse with prosecuting witness, Effie Skidmore. On objection by the State the court excluded this testimony. This was admissible for the purpose of showing the acts of intercourse had with the witness during the month of December might have brought about the pregnancy of Effie Skidmore, and that he was the father of her child born the following September. As before stated, this evidence was admissible for the purpose mentioned.
4. John C. Hamilton, after stating that he knew Miss Effie Skidmore, and that he waited on her for about seven or eight months occasionally while she was living with her father, was asked by counsel for the State to state to the jury whether or not during the time he had waited on her he ever saw any impropriety or misconduct on her part. Appellant urged objections to this testimony to the effect that the State was not entitled to show what her
general reputation was, or introduce evidence of this character to meet the acts of impropriety introduced against her by appellant, and that the State would not be authorized to specify acts of morality or good conduct upon her part. As a rule, evidence in regard to the character or reputation of prosecutrix, in a case of incest, is not admissible, for it would make no difference what her reputation was if the incestuous intercourse occurred. The law would be violated if the prohibited relation existed even though the prosecutrix was a prostitute. But we are of opinion even where the character or reputation of prosecutrix for some reason occurring during the trial is admissible, yet not the character of testimony mentioned in the bill of exceptions. The fact that Hamilton associated with this girl and saw no evidence of impropriety in her conduct would not be admissible.
5. We are of opinion, under all the circumstances, that the evidence with reference to the conveyance of land by appellant to his sister was admissible,' as shown by the bill of exceptions. The deed of conveyance from himself to his sister and the deed from her reconveying the land was in the possession of appellant or at least had been traced to his possession. The State in any event did not have the deeds or access to them and could in no manner produce them. Notice had been given appellant to produce the deeds else the State would introduce secondary evidence. The deeds were not produced, and the evidence tendered in the bill of exceptions as well as in statement of facts was introduced through the" mouths of witnesses to prove the conveyance, dates, etc. This evidence was introduced in connection with the fact that appellant left the State for a short while and returned. While he gave an explanation of these matters, still this was evidence on the part of the State to go to the jury.
6. The remark of counsel for the State to the effect that if appellant would take the stand he could prove certain facts by him, will not occur upon another trial, therefore, it is not discussed. It may be well enough to remark that all allusions of this sort should not be indulged during the - trial. Such allusions can serve no good purpose, and, whether strictly erroneous or not, or really in fact referring to the failure of the defendant to testify or not, are trenching on dangerous grounds and are wholly unnecessary, and may involve questions of reversible nature when there is no necessity for it.
For the errors indicated, the judgment is reversed and the cause is remanded.
Reversed and remanded.