Spearman v. State

152 S.W. 915, 68 Tex. Crim. 449, 1913 Tex. Crim. App. LEXIS 23

• Court: Court of Criminal Appeals of Texas
• Decided: January 22, 1913
• Docket: No. 1538.
• Status: Published

Opinions

PRENDERGAST, Judge.

— Appellant was convicted of perjury and his penalty fixed at three years in the penitentiary.

At the March Term 1908, of the District Court for Titus County, Mrs. Stella Spearman brought suit against J. W. Spearman, appellant, for divorce and to set aside the judgment theretofore, October 10, 1907, procured by him against her in said same court then and there decreeing him a divorce against her. The record discloses that the said suit by Stella Spearman against appellant was tried in said court regularly before the District Judge thereof at the October Term, October 8, 1908. In that trial appellant, in the indictment herein, among other things, is charged to have testified falsely and committed perjury in that he testified on said trial October 8, 1908, that he had never had carnal intercourse with Stella Culpeper, then Stella Spearman, before he married her. He married her on July 29, 1907.

There is a good deal of evidence in the ease which it is unnecessary for us to here state. Among other things, appellant testified in this case that on the trial of said case, October 8, 1908, he had testified as charged in the indictment, but he claimed his testimony in that respect was true.

Prom all of the evidence in the record the jury were clearly and fully authorized to believe this state of facts:

Stella Culpeper, in February and March 1907, was a young country girl, uneducated, having attended school very little, was altogether inexperienced in the world and had not been about much. AppeEant at that time was a matured man, — perhaps thirty years of age, — and was a school teacher, teaching in the country about ten miles from where SteEa and her parents then lived. He was somewhat related to her father. Shortly prior to February 1907, appellant was at her father’s and induced her parents to let her board in the community near his school and attend his school as a pupil. They thereupon sent her to a countryman to board who lived about one mile from the school building, about the middle of February 1907, for the purpose of her attending appeEant’s school. From this boarding-house she did attend his school continuously perhaps as much as six weeks until the term closed the latter part of March 1907. She was fifteen years of age February 29, 1907, — was not fifteen years of age at the time she began attending his school. She, with other children, and appellant himself, it seems, took their noon lunches to school with them and remained at the school-house and on the grounds thereabouts at the noon recess which was usually about an hour. Soon after Stella began attending his school, appellant began to make love to her, professing to love her, etc., and in the early part of March began to solicit and try to induce her to permit him to have sexual intercourse with her. She at first would not consent, but after further solicitation on his part and his promise to her that if she became pregnant he would marry her, she yielded to his embrace and during that month he had sexual intercourse with her three several times from which by him she became pregnant, and a child was born to her December 22, 1907.

Stella missed her menses in April, having been regular for some time before then up to the March period which she had. Appellant repeatedly after March had talks with her thereabouts. She told him that she had missed since March and he became very uneasy thereabouts. They repeatedly and from time to time from March until July 29, 1907, when they married, talked about her pregnant condition and he continued to be very uneasy thereabouts. Shortly before their marriage, he brought Stella from her home to Mount Pleasant, the county seat of Titus County, to a boarding-house. Even before then he had consulted with a physician at Mount Pleasant, telling him that in March preceding he had had sexual intercourse with Stella three several times and was very anxious to know from him^ whether she was pregnant thereby. While she was at this/boarding- // house he had the physician to pass by it, he to have her out where the doctor could see her, and give appellant his opinion of whether or not she was then pregnant. In this way, without her knowledge, he had the doctor to surreptitiously appear at this boarding-house and see her. After the doctor saw her, he saw the doctor and was very anxious to know what the doctor’s opinion was. The doctor could not then tell him, and while he had told the doctor that she had missed her monthly periods from March up to that time, the latter part of July 1907, from that fact alone and her then appearance the doctor could not tell him whether she was then pregnant. At any rate, he then concluded to, and in a few days after this, did marry Stella and lived with her as his wife from that time to October 10, 1907, the very day on which he procured the said decree of divorce against her. Just before, or just after he married the girl, he talked to another doctor and asked him what was good to produce an abortion.

Shortly before the term of the said District Court in October 1907, while appellant was living with Stella, as his wife, in the town of Mount Pleasant, Texas, he brought a suit for divorce against her in said court, had her properly served with citation prior to the term and on September 25, 1907, had the district clerk of said court, with his attorney, go to his residence and take her depositions. He had her therein, in answer to his interrogatories to swear that when she married him she had been pregnant about four months; that so far as she knew he knew nothing of her being pregnant when she married him; that he had never had intercourse with her prior to his marriage to her and he was not the cause of her pregnancy. He also had her therein to refuse to answer who was the cause of her pregnant condition ; that she knew she was pregnant when she married him and did not tell him that she was and that she, that morning, the day she answered the interrogatories, admitted to him her said condition; that she had theretofore denied it to him; that all this testimony by her in answer to these interrogatories, was, as a matter of fact, untrue. That in March 1907, he had intercourse with her three times from which she became pregnant by him and that he knew it; that they frequently discussed it, both before and after their marriage; that he instigated her to give this false testimony in his divorce suit against her by representing to her that her pregnancy would soon become publicly known; that she would have a child all of which, if it became known, would result in the grand jury indicting him and his being sent to the penitentiary because of his having intercourse with her in March 1907; that she believed his representations in this respect and gave said false answers to ‘said interrogatories at his instigation and to save him from the penitentiary; that he told her what answers to give to each interrogatory and she answered as he instructed her; that she loved him, he was to be the father of her child and she did not want him sent to the penitentiary.

Notwithstanding she answered said interrogatories as stated above and they were at once filed in the court, he continued to live with her as his wife from then until the very morning that he got his divorce, October 10, 1907. On the very early morning of that day he shipped her off to Oklahoma to prevent her from appearing before the grand jury and avoid any indictment against him for having had sexual intercourse with her before he married her. When she had been in Oklahoma about a month after the grand jury had adjourned, he wrote to her to come back but not to come to Mount Pleasant but stop at Omaha, in Morris county, a small place on the railroad, where he would meet her. She complied with his instructions, stopped at Omaha where he did meet her and took her from there to a neighbor’s to stay all night, thence to her uncle’s the next day, he paying her hotel bill, etc. When she reached Omaha and met him on this occasion he told her he supposed that they had divorced him; that the clerk had thrown the books open and the Judge had seen her depositions and granted a divorce. She then told him that he had promised her he would get no divorce but that he simply wanted her depositions, to the effect that she had given them, in order to keep him from going to the penitentiary. He said the divorce made no difference, that he would remarry her and live with her. He had nothing whatever to do with her after he first got his divorce from her.- She was remarried to a Mr. Simms of Dallas in October 1910 and at the time of this trial was the wife of Simms. As soon as the ease was tried, October 8,1908, appellant was arrested on complaint for perjury. He gave bond. Then fled, and although diligently sought by the sheriff for two years could not be found. After two years and five days he voluntarily surrendered.

In order to show the matter at issue in the divorce suit by Stella against appellant in 1908, the State introduced her petition in that case, his answer and his divorce decree against her of October 10, 1907. This petition is some seven pages of typewritten matter. Other than a copy of it in the bill, the bill is very meager and does not state the matter so that this court can know therefrom the status of the case and the bearing thereof. Appellant’s objections thereto were general. He in no way pointed out any special portion thereof that was objectionable, but his objections went to the introduction of it for any purpose whatever. What we have said about this bill equally applies to appellant’s bill objecting to the introduction of his said answer, and the same is true of his third bill to the copy of said judgment.

Certainly all of these papers were clearly admissible for the purpose for which the State introduced them. Even if there should have been any particular allegation or other matter in any of these- papers that was objectionable that particular item should have been objected to and pointed out to itself. A mere objection to the introduction of the whole thing would not reach any such matter. The court stated to the jury in his charge that said petition, answer and judgment were introduced to show that a civil judicial proceeding was pending in the District Court of Titus County, and that that court had jurisdiction and that issue was formed therein and told them that they could not consider such evidence for any other purpose and that such evidence was not corroborative and could not be considered by them to show perjury.

A material question in the case was, whether or not appellant had had sexual intercourse with Stella in March 1907, before he married her and whether his testimony denying such .intercourse was true or false. It was, therefore, material and proper that the court should permit her to testify in detail to these acts of intercourse. Appellant’s bill on this question is so meager as not to apprise this court of the surrounding circumstances as to whether or not this testimony was inadmissible. His objection to it was that it was wholly immaterial and irrelevant. In our opinion it was both material and relevant and the court did not err in admitting it.

The next bill merely shows that while Mrs. Stella Simms was on the stand testifying she was asked, “where were you on October 10, 1907?” She answered, “in Oklahoma.” Then she was asked how long she stayed there. She replied she did not know exactly, — that she went to stay twenty days. Appellant objected to this because it was immaterial and irrelevant. The bill shows no error whatever.

The next bill is as meager, if not more so, than any of the others and is wholly insufficient, under the long established rules of this court te require or authorize this court to consider it. Briefly, it states that while Mrs. Stella Simms was on the witness stand, the State was permitted to prove, over his objections, that while she was in Oklahoma appellant wrote to her to come home and stop at Omaha and that he would meet her there; that in response to his request she did come and he met her and took her in a buggy to her uncle’s; that he then told her that while the court was in session someone had permitted the books to get open and the Judge saw her depositions and granted him a divorce, but he did not think it amounted to anything, and he could not tell until he saw the papers and that even if he had been granted a divorce he would take her, remarry her and they would live together. The appellant’s objections to this evidence was that it was immaterial and irrelevant; that the divorce was granted and afterwards suit was brought to set it aside and re-instate the relations of husband and wife, and that divorce judgment was obtained through fraud and was set aside on that ground, and any testimony as to any conversation between the witness and appellant after they were married until the divorce was finally granted to her in 1910, was in contravention of the statute. That the divorce granted to appellant in October 1907 was void. This is the substance in full of this bill. It is clearly insufficient to authorize, or require us to pass on the questions attempted to be raised. See Secs. 857, p. 557, and 1123, p. 732 of White’s Ann. C. O. P. for a collation of some of the authorities on the insufficiency of such a bill. Even if we could consider the matter at all, the bill clearly shows that these statements testified to by Mrs. Simms were made to her by appellant at least three weeks after he had procured a divorce against her and that they were not then and never afterwards husband and wife.

Appellant has several bills of exceptions showing that he offered to prove by some five witnesses that at the time of this trial Mrs. Simms’ general reputation, where she formerly lived in Titus County, for chastity was bad, for the purpose of impeaching her testimony in this case. Clearly under the authorities such testimony was inadmissible as the lower court properly held.

The only other bill of appellant’s shows that while Mrs. Simms was a witness for the State that the State was permitted to ask her why, and to explain why, she gave the answers she did to the said interrogatories of appellant in his suit against her for divorce; that appellant objected to this because it was immaterial, irrelevant and a confidential communication between husband and wife, during their coverture, was a violation of the statute and the witness could not be required to testify to any communication made to her by her husband during coverture; that in answer to these questions she stated substantially what is shown on the subject in the preliminary statement above, of the proof in this case. The court explained the bill briefly by showing that appellant filed suit against his wife for a divorce; that she testified by depositions in substance as above shown; that she was asked to explain why she testified in answers as above set forth. What we have said about the bills above is equally applicable to this. It is wholly insufficient to require us to pass upon the questions attempted to be raised. However, if we could go to the record to ascertain the facts, we could find that the State did not have Mrs. Stella Simms, — formerly Spearman, — to testify to any communication whatever between appellant and her while she was his wife, but that after the State had introduced its proof and rested, appellant himsel 1' introduced said depositions of his wife showing what she had testified in his divorce suit against her and upon which he got his divorce, thereby, in effect, making her his witness. The State then, in cross-examination, after he had thus introduced her and had her to testify, merely asked her what is stated in the bill and she then explained why she had so testified in appellant’s divorce suit against her. Clearly, the appellant having introduced her and proved by her material testimony for himself, the State had the right to cross her to show the circumstances of why and how came hex' to so testify. Johnson v. State, 28 Texas Crim. App., 17; Jones v. State, 38 Texas Crim. Rep., 87; Gaines v. State, 38 Texas Crim. Rep., 202; Merritt v. State, 39 Texas Crim. Rep., 70, and many other cases.

Complaint is made of certain paragraphs of the court’s charge, among them, because the coux-t did not submit to the jury for its finding whether or not a civil judicial proceeding was .pending in said court and whether or not issue was joined therein by Stella Spearman and appellant. While it is proper to show these matters, when shown, as in this case, by the pleadings introduced in evidence, it becomes a matter of law and not of fact and it was not necessary that they shoxxld be submitted to the jury for a finding. Foster v. State, 32 Texas Crim. Rep., 39; Washington v. State, 23 Texas Crim. App., 336; Jackson v. State, 15 Texas Crim. App., 579.

It was entirely proper for the court to state to the jury in his charge, as he did as stated above, why the said pleadings and judgment were introduced and to tell the juxy for .what they could be considered and what not, and such charge is not subject to the objection that it was upon the weight of the testimony.

Complaint is made to the charge of the court, among other grounds, that it did not submit to the jury whether appellant’s testimony to the effect that he had not had sexxxal intercourse with Sella Culpepper before he married her was in fact false. An inspection of the charge shows that the court did submit this question to the jury and required them to believe beyond a reasonable doubt that such testimony was false before they could convict appellant. It may be that the charge is not very happily expressed but it did require the jury to believe from the evidence beyond a reasonable doubt before they could convict him, that the falsity of his said statement had been established by the testimony of two credible witnesses, or by one credible witness strongly corroborated by other evidence and that said false statement by him was made willfully and deliberately.

The record shows that several special charges were requested by appellant and refused. No reason whatever is given in the requested charge or in the ground of the motion for new trial complaining of the refusal to give them, why they should be given. In the motion for new trial, the only complaint is that the court erred in failing .to give to the jury his special charge No. -, filling the blank with the respective numbers of the charges. This is entirely too general to require this court to pass upon the question. However, we have examined these special charges and so far as the questions stated by any of them were material to have been giyen, they were in substance embraced and given in the main charge of the court.

There being no reversible error pointed out the judgment will be affirmed.

Affirmed.