Linder v. State , 94 Tex. Crim. 316 ( 1922 )

Appellant was convicted of assault with intent to rape upon one Nona Whitlow and his punishment assessed at five years confinement in the penitentiary.

Appellant's family and that of prosecutrix lived in the same neighborhood. On the afternoon preceding the night upon which the offense was alleged to have been committed appellant appeared at the residence of prosecutrix's father and informed her there was going to be a "candy pulling" at his home on the night in question and made an engagement to take her. On the return from the party prosecutrix says appellant stopped the car in which they were riding and made an assault upon her. She claims that he put his arms around her and asked if she loved him, and upon her reply in the negative he asked if she loved someone else, to which she replied in the affirmative, whereupon appellant told her she "would love him when he got through with her;" that while holding her around the neck with one arm he removed the glove from one of his hands with his teeth, unbuttoned his pants, got in front of her in the car and placed his hand under her clothing on her knee; that she was struggling with him during all this time and finally got her feet out over the door of the car and slid out on the running board; that he was holding her around the arms and that as she wrenched loose from him he caught her by the hair and pulled some of it out as she broke away, whereupon appellant said: "Come back here, you bitch;" that she immediately ran off in the woods and made her way to the home of Mr. Carrol where she reported the matter. The evidence of appellant did not place himself in a very favorable light before the jury. He admitted that some two years before this occasion he had been in a buggy with Miss Whitlow when for some reason she got out of the buggy and it was with difficulty he persuaded her to get back in so he could take her home. The details of that transaction were not gone into and Miss Whitlow was not asked about it at all. Appellant admitted when he sought the engagement with prosecutrix to take her to the party she asked him "if she went with him would he treat her right." He admits that his purpose in making the engagement was to have carnal intercourse with her but denies that he intended to accomplish it by force, but intended to secure her consent thereto. He admits that she repulsed his advances and that he tried to hold her, explaining his conduct upon the theory that he was trying to retain her in the car until she got over her fright when he intended to take her home. He also admits that as she got out of the car he grabbed at her and caught her by the hair. This is a sufficient statement of the facts further than as may be disclosed in the discussion of certain bills of exception.

Error is assigned because the court refused to give certain special charges. The charges bear endorsement authenticated by the trial judge that they were presented before the general charge was read, and were refused. Nowhere on the charges themselves does it appear that exception was reserved to their refusal. No separate bills of exception reserving the point appears in the record. In Barrios v. State, 83 Tex. Crim. 548, 204 S.W. Rep., 326 it was held that refusal charges could not become the subject of review in the absence of bills of exception. To the same effect is Fry v. State, 86 Tex. Crim. 73, 215 S.W. Rep., 560; Nichols v. State, 91 Tex. Crim. 277, 238 S.W. Rep., 232. If the special charges bore notation over the trial judge's signature that they were presented to him before the main charge was read, were refused and to which refusal exception was reserved, we think it would be a sufficient bill to meet the requirements of the law, and would obviate the necessity of a more formal bill of exception; but in the absence of such showing on the charge itself a formal bill would be necessary; in the absence of both the matter is not before us for review.

Upon the voir dire examination of the jurors it was ascertained that one of them was neither a householder or freeholder. The bill of exception states that counsel for appellant stated to the court that he was a qualified juror but that he was excused, and exception reserved. The second ground of challenge for cause under Article 692 C.C.P. is, that a juror is neither a householder in the county nor a freeholder in the State. This challenge may be exercised either by the State or defendant. We do not stop to inquire into the matter further than to say while the bill shows that appellant waived the challenge, it fails to show that the State also waived it. The correctness of the court's action in discharging the juror must be presumed. So far as the bill shows the State may have been insisting on the challenge.

Complaint is made because over appellant's objection prosecutrix was permitted to testify that she told Mrs. Carrol that "Eliphas Linder had tried to rape her," and to Mrs. Carrol testifying that she said, "that trifling Linder boy has tried to rape me." It is insisted that the statement was not res gestae, and went further than the law permits in showing complaint made by prosecutrix, and where and to whom made. Miss Whitlow testifies that after she broke loose from appellant and escaped from the car she ran through the woods to Mrs. Carrol's; while she does not know exactly how far she traveled in the roundabout way she went, she says it was only about ten minutes from the time she left the car until she reached the Carrol home, where the statement was immediately made. Mrs. Carrol says when prosecutrix reached her house and called her daughter, she bore every appearance of having been running, was very nervous, excited, crying and could scarcely talk. That she asked, "What in the world is the matter, Nona?" to which prosecutrix replied in the language complained of. We are unable to draw a distinction between the instant case and those of Sentell v. State,34 Tex. Crim. 260, 30 S.W. Rep., 226; Castillo v. State,31 Tex. Crim. 145, 19 S.W. Rep., 892; Fuller v. State,69 Tex. Crim. 534, 154 S.W. Rep., 1021; Stockton v. State,80 Tex. Crim. 521, 192 S.W. Rep., 236; Rogers v. State,65 Tex. Crim. 105, 143 S.W. Rep., 631; Sharp v. State,71 Tex. Crim. 633, 160 S.W. 369. The Carrols were the first people prosecutrix had seen after the assault, and the circumstances under which the statements were made preclude any idea of deliberateness; the statements appear to have been the spontaneous speaking of the facts. As said in some of the cases supra, even a more detailed statement would not have been objectionable.

Prosecutrix was asked upon cross-examination if she had ever kissed or permitted anyone to kiss her. She admitted having kissed two young men to whom she had been engaged. She denied ever having kissed Olan Weems or having permitted him to kiss her. No objection was interposed by the State to these inquiries of prosecutrix. Appellant proposed to prove by Weems that he had kissed her and she him. Objection by the State was sustained. The bill of exception shows that appellant was offering Weems for the purpose of impeachment, but we understand he contends in his brief that it was also admissible on the issue of prosecutrix's character, for chastity. The credibility of a witness cannot be thus attacked. For the latest expressions from this court upon the subject, together with citation of authorities, see Barnes v. State, 90 Tex.Crim. Rep., 232 S.W. Rep., 312, Hays v. State, 90 Tex.Crim. Rep., 234 S.W. Rep., 898. It was no answer to the State's objection that it had permitted the predicate to be laid without protest. It was an attempt to impeach upon an immaterial issue, and the State was not estopped from objecting when the traversing testimony was offered. Neither was the evidence admissible upon the issue of the character of prosecutrix, for chastity. It must be borne in mind that the charge against accused was assault to rape by force. All the cases cited by appellant (save Norman v. State,89 Tex. Crim. 330, 230 S.W. Rep., 991) are in prosecutions for seduction. In that offense the previous chastity of the female is directly in issue. In Norman's case he was charged with statutory rape upon a female over fifteen years of age, and the statute (Art. 1063 P.C.) now makes previous unchaste character of the female a complete defense to such charge, thereby placing cases of that character in a class analogous to seduction. This is not true in rape, or assault to rape by force. As applied to cases of this character, specific acts of misconduct or immorality of the prosecutrix cannot be shown except it may have been with accused. Ross v. State, 60 Tex.Crim. Rep., 132 S.W. Rep., 793; Lawson v. State, 17 Texas Crim. App., 302; Wood v. State, 80 Tex.Crim. Rep., 189 S.W. Rep., 474; Jennings v. State, 80 Tex.Crim. Rep.; 190 S.W. Rep., 732. In the instant case the issue of consent is not raised. It is excluded by the evidence of accused himself. Steinke v. State,33 Tex. Crim. 65, 24 S.W. Rep., 909.

It is shown by bill of exception number four that while counsel representing the State was making his closing argument to the jury he used the following language:

"that the defendant' counsel had brought out highly improper and insulting evidence from the prosecutrix, and had acted unfairly, and had been guilty of conduct, the like of which he had never seen in the courtroom before, in propounding to the prosecutrix the question and compelling her to tell, ``how many times she had been kissed, and by whom,' and that said conduct was infamous, and that counsel for the State had silently stood by and permitted the questions to be asked, because they know, if they objected, that the jury would not understand the objection, and thus, they had drawn from this witness improper and insulting evidence, in violation of law."

When the language above set out was objected to the court says in his qualification to the bill that he not only announced that this argument was improper but also in the presence of the jury stated to counsel for the State that he should not engage in that kind of argument; that no request was made to instruct the jury to disregard the same. In view of the prompt action of the court we do not believe the argument was of that hurtful character which would call for a reversal of the case, and especially so in the absence of a requested charge that the jury should not consider it. Another bill of exception appears in the record to the argument of the same attorney, who said "that he had no apology to offer for accepting a fee to prosecute this case for the good people of Tennessee Colony."

In approving the bill the trial judge says that one attorney for appellant in his argument had stated that "the good people of Tennessee Colony would have taken steps in this matter if there had been anything serious in the charge against defendant." As we understand the qualification to the bill the attorney representing appellant had undertaken indirectly to impress the jury with the idea that if the people in the community where the offense is alleged to have occurred had believed there was anything serious in the charge against accused they would have taken some action about it. This was improper argument of the attorney representing appellant. The reference by him to the action of the "good people of Tennessee Colony" appears to have provoked the language complained of. (Watson v. State,90 Tex. Crim. 576, 237 S.W. Rep., 298, and cases cited therein.)

Having considered all questions discussed in appellant's brief and finding no error in the record calling for a reversal, an affirmance is ordered.

Affirmed.

ON REHEARING. May 2, 1923.