Kitchen v. State , 101 Tex. Crim. 439 ( 1925 )

The sufficiency of the evidence to support the verdict is challenged. Appellant claims that in proving the corpus delicti the State relied alone upon the testimony of witnesses who were accomplices within the meaning of Art. 801, C. C. P., which forbids the conviction of one of crime upon the uncorroborated testimony of an accomplice.

It is the State's theory that Melton Carr, a negro, was induced by the appellant to ravish his wife. Carr, who had been previously tried for the offense and against whom a verdict of guilty assessing the death penalty had been rendered, was used by the State as a witness against the appellant. Carr testified that upon the night of the offense, he met the appellant at the home of Evanetta Blackshire, a negro woman. They left her house together and went to a point near the dwelling-house of the appellant. Carr then went to the house and sought to induce the appellant's wife to come out of it, appellant, in the meantime, waiting nearby. Failing to induce her to come out, Carr went to the appellant and reported his failure. Appellant demanded that Carr return and accomplish the rape and emphasized his command with a threat to kill him. According to his testimony, Carr then went to the appellant's home, broke open the door, dragged the woman from the house and ravished her. Appellant in the meantime, was nearby and was holding the hat of Carr. Upon the return of Carr to the place where the appellant was standing, the latter was told that the rape had been committed and remarked with an oath that he guessed his wife would leave. The two then returned to the home of the negro woman.

Carr, on his own trial, disclaimed any connection with the offense. On the present trial he explained the change of his testimony by the statement that at the time of his own trial he felt sure that if he revealed the true facts he would be killed by the appellant. According to Carr, at the time the offense was committed appellant was only a short distance away. The moon was shining.

From Evanetta Blackshire's testimony it appears that she was a paramour of the appellant; that he was at her house during the first part of the night; that while he and she were in bed together Carr came, and the two left the house. Appellant subsequently returned, at which time he told her that Carr had been with his wife and had been "fooling with her"; that he wanted to run her off. Quoting her, she said:

"When he came back that night he told me about Big Ones, that is, Melton Carr. He told me about Melton having been with his wife. He said that Big Ones had been with his wife and had fooled with her, and after he got through he kissed her and told her, 'Honey, go in the house and go to bed.' . . . I did not know about Melton Carr raping Mrs. Kitchens until Mr. Kitchens told me he saw Melton when he did it and he said he was close enough to see it. He told me he was close to a black-jack tree."

She further testified that upon the trial of Melton Carr, under the influence of the appellant and upon his threats to kill her, she had hid in the woods and refrained from attending the trial.

Appellant told a deputy sheriff that he did not want the law to handle the assailant of his wife; that he would take care of the situation. When told that they were about to bring into town the negro who had raped his wife, appellant said that he wanted her to identify him and that he would then kill him.

Appellant's wife testified that Carr had broken into her house, taken her outside and ravished her. The evidence showed that she went to the home of the appellant's father and reported the matter upon the same night. Her young son also testified that a negro had assaulted his mother. She further testified that appellant did not spend the night at home but told her he was going to the pasture. She said, however, that at the time of the assault she did not see him; that she did not believe he was there, or that he was guilty of the offense.

Carr, of course, was an accomplice witness, and his uncorroborated testimony would not support the conviction. The position taken by the appellant is that there is not corroboration of Carr to the point that the appellant advised the commission of the offense and was present at the time it was committed. This contention is based upon the proposition that the woman, Evanetta Blackshire, was an accomplice witness. If she was not an accomplice, the appellant's position seems untenable. Her testimony was to the effect that the appellant told her that he was present when Carr committed the offense; that he did not care because he wanted to run his wife off. She also testified that Carr and the appellant, on the night of the offense, were together at her house both before and after the time that the assault was made. Aside from this extrajudicial confession of the appellant, the fact that the rape was committed by Carr is established by the testimony of Carr, supported and corroborated by the testimony of the appellant's wife. Carr gave direct testimony that the appellant commanded and was present at the commission of the offense, thus making him a principal offender under Art. 78, P. C. See also Middleton v. State, 86 Tex.Crim. Rep.. Appellant's extrajudicial confession, if proved to have been made by him, was available to the State to corroborate the accomplice Carr. On this subject, see Kugadt v. State, 38 Tex.Crim. Rep.; Harkey v. State, 90 Tex.Crim. Rep., and cases cited; also Aven v. State, 95 Tex.Crim. Rep..

Proof of the confession was by the witness Blackshire. The fact that she secreted herself or permitted herself to be secreted and refrained from testifying upon the trial of Carr did not, in our opinion, characterize her as an accomplice witness. On this subject, in addition to the authorities cited in the original opinion, reference is made to Rhodes v. State, 11 Tex. App. 563[11 Tex. Crim. 563]; Porter v. State, 43 Tex. Rep. 367; Chenault v. State, 46 Tex.Crim. Rep.; Alexander v. State,82 Tex. Crim. 431; Herndon v. State, 82 Tex. Crim. 232; Burge v. State, 73 Tex.Crim. Rep.; Hargrove v. State, 63 Tex.Crim. Rep.; Chitister v. State,33 Tex. Crim. 638; Robertson v. State, 46 Tex.Crim. Rep.; Schackey v. State, 41 Tex.Crim. Rep.. Without quoting them, the vconclusion is stated that the authorities cited fully support the ruling of the trial court in declining to instruct the jury upon the law of accomplice testimony pertaining to the witness Blackshire. The only authority which has come to our notice which would support the contention that she was an accomplice or that the testimony was sufficient to present the issue to the jury is Gatlin v. State, 40 Tex.Crim. Rep., which was overruled in Chenault's case, supra, wherein the contrary doctrine was asserted.

The witness Blackshire not being an accomplice, her testimony, if believed by the jury, went to show that the appellant had admitted his presence at the time the offense was committed. Appellant's confession, the offense being otherwise proved, was sufficient to meet the measure of the law demanding that the corroborative evidence be such as tends to connect the accused with the commission of the offense. See Art. 810, C. C. P.

From the record before us, we are constrained to conclude that the evidence is sufficient to support the verdict of the jury and that no error is shown to have been committed in the conduct of the trial. The motion is overruled.

Overruled.