Tomlin v. State , 25 Tex. Ct. App. 676 ( 1888 )

Hurt, Judge.

On the twenty-eighth day of March, 1888, appellant was tried and convicted for rape, the punishment being fixed at imprisonment in the penitentiary for life. On the fifth day of April, 1888, his .motion for new trial was overruled by the court, and on that day sentence was passed on him. On the eighteenth day of April, 1888, appellant’s bills of exception were filed and by these are the only questions presented for revision, except as to the sufficiency of the evidence and the* correctness of the charge of the court.

The bills of exceptions being filed in term it is contended by counsel for appellant that they may have been presented to the judge within the ten days, and that, if this was the case, appellant complied with the law. This position is correct, the presumption being that the trial judge would not approve the bills unless presented within ten days.

The motion to quash the special venire is not well taken. There are facts in this record strongly tending to show rape. There are also facts tending to prove that, if appellant had carnal knowledge of the prosecutirix, it was with her consent. This being the state of the case, it is of first importance to the rights of appellant that no facts be admitted in evidence except such as are competent, especially if they were calculated to work injury to him.

The State proved by one Cordele that, five years before the trial, appellant told witness that he (appellant) had a medicine which, if administered to a woman, would make her yield to his desires. To the introduction of this matter the defendant objected on the ground that it was irrelevant and illegal. The objection was overruled and defendant excepted, reserving his bill.

The indictment alleges that the carnal knowledge was effected by force, and the State relies alone upon proof of force for conviction. There is no evidence tending remotely or otherwise to show that, five years ago, defendant knew or had ever heard of the prosecutrix. It is impossible to see the bearing this matter could legally have upon this case or any issue involved in this trial. That a party on trial for horse theft had said that he was a thief, and was thoroughly equipped for the theft business, is as competent evidence as the fact that appellant, five years ago,, “had a medicine which would cause women to yield to his lust.” The facts in the one case might prove the accused so completely depraved as to be a confirmed horse thief; in the other, that the accused was so thoroughly under the dominion of his lust as to be disposed to commit rape under any and all circumstances. Still, in neither case would the facts be legal evidence.

Under the only vital issue in this case, “consent vel non,” this irrelevant matter was evidently, to the mind of the writer, calculated to prejudice his case with the jury. He stood before his triers a confessed rake and libertine, capable of any crime to which he might be prompted by his ungovernable passion. This evidence being incompetent and strongly calculated to prejudice appellant with the jury, under the peculiar facts of the case the conviction should be set aside and a new trial granted.

Opinion delivered June 20, 1888.

We will not disóuss the sufficiency of the evidence to support the conviction, believing, however, that if the case is tried properly and defendant is convicted, we would not reverse because of insufficiency of the evidence.

The criticism upon the charge made by counsel for appellant is not just. It is not intimated in the charge that all the force necessary to commit rape is involved in that which constitutes an assault or an assault and battery.

For admitting in evidence the matter above noticed, the judgment is reversed and the cause remanded.

Reversed and remanded.