Sharp v. State , 102 Tex. Crim. 305 ( 1925 )

OPINION. The appellant was convicted in the District Court of Bowie County for the offense of rape and his punishment assessed at confinement in the penitentiary for a term of five years.

The appellant complains by bill of exceptions No. 1, at the court's action in permitting the State to prove by the prosecuting witness that the defendant had intercourse with her at two different times. It is the right of the State to introduce such testimony when it tends to solve some controverted issue, and in this case, the testimony of the prosecutrix to the effect that the offense was committed by the appellant was controverted by evidence of the appellant denying sexual relations with prosecutrix, and also by much testimony tending to show that other parties were in a position to and probably did commit the act of intercourse which caused the prosecuting witness to become pregnant. Under this state of the record there was no error in admitting the testimony of prosecutrix to the other act of intercourse with the appellant. Crosslin v. State, 235 S.W. 905; Gregory v. State,244 S.W. 615; Rosamond v. State, 249 S.W. 468; 263 S.W. 297;263 S.W. 1067; McKnight v. State, 265 S.W. 892; Gregory v. State,92 Tex. Crim. 574; Ables v. State, not yet reported.

As stated, however, in the Crosslin case, supra, it was the appellant's right to have the prosecution select a transaction upon which it would seek to convict him, as each act of intercourse constituted a separate and distinct offense; but in this case, we fail to find any suggestion in the record that appellant sought to have the State elect on which act it would prosecute. With the record in this condition, no error is perceived with relation to the matter complained of in said bill of exceptions No. 1.

Complaint is made by proper bill to the action of the court in permitting the witness Rosie Owens to state that there was not much difference between the prosecuting witness' size now and her size at the time the offense was alleged to have been committed. There is no error manifested by this bill. It was certainly not harmful to the appellant to show that the prosecutrix was as large at the time the offense was alleged to have been committed as she was at the time of the trial, and this is the full substance of the testimony objected to.

Appellant also complains at the court's action in permitting the state to prove that he was seen about the house of the mother of the prosecutrix during the summer of 1923. The indictment charges that the offense was committed in August 1923 and the objection contained in the bill of exceptions is to the effect that unless the state could show what the defendant was at the home of the prosecutrix's mother for, the testimony was irrelevant and immaterial. This objection is without merit. It was the right of the state to show as a circumstance in the case that the appellant was in a position to have committed the offense at and about the time charged in the indictment.

By many bills of exception, appellant complains at the conduct of the district attorney in his closing argument, in referring to the fact that he was not permitted to cross examine the wife of the appellant as fully as he desired to do. It seems that the court had sustained the appellant's objection to certain questions asked the wife of the appellant by the district attorney and these bills show that the district attorney referred to this matter many times in his argument and his references were all in the nature of complaints at his inability to cross examine the appellant's wife concerning the matters not brought out by the appellant. Prosecuting officers will as a rule abide by the court's ruling without complaint, and the conduct of the prosecuting attorney in this case is not to be commended; but in view of the fact that the appellant was given the lowest penalty under a state of facts that might have justified a more severe penalty we are not disposed to hold that this misconduct of the district attorney is shown to have prejudiced the appellant's case, and the complaints with reference thereto are overruled.

By bill of exceptions No. 12, the appellant complains at the argument of the district attorney with reference to the suspended sentence. We have carefully examined this argument and do not find any reversible error in connection therewith. It seems to us to be a rather forceful but probably not an unfair argument touching the question of a suspended sentence.

Finding no reversible error in the record, it is our opinion that the judgment should be in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.