Tyler v. State , 145 Tex. Crim. 315 ( 1942 )

BEAUCHAMP, Judge.

The appeal is from a sentence of five years in the penitentiary on a charge of rape.

The evidence shows that appellant, who was reared and attended school in the City of Houston, had returned to his home about a month previous to the commission of the offense charged after he had been discharged from a third term in thef penitentiary in Oklahoma. He was twenty-eight years of.age and married. Late in the night of March 25, last, appellant joined one Jamison, leaving his wife and home for the announced purpose of a visit with friends whom he had not seen for some time. From a controverted story of the happenings, we learn that they were soon joined in their car by Atna Dailey, the prosecutrix, and a girl named Clayton. After several hours of automobile riding and beer drinking at different night places, the Clayton girl was taken to her home and Atna Dailey remained in the car with'the two men. According to her testimony, she asked to be taken home but they declined to do so and drove out of town onto a side road among some trees. At this point thb evidence of the State ;and of .the defense differs materially as to what took place. The appellant admits his act of intercourse but claims it was with her consent, while she tells a horrible story of mistreatment and force upon the part of the appellant, who, according to her, was assisted by Jamison. They then took her home and appellant went to his residence, arriving some time before four o’clock. She called the police who investigated the matter and attested to her physical appearance and to the fact that she was sober, corroborating her story of mistreatment. She was then taken to the hospital where she was examined by a physician. The doctor’s testimony to facts would amply justify the jury in believing the story which she told of the misconduct of the two men. There is no question about the sufficiency of the evidence. There is no contention seriously made that the prosecuting witness was a virgin. The doctor’s testimony would not aid the State in such contention had it been made. Probably this fact had its full force and effect with the jury, who gave appellant only five years in the penitentiary, but.it is no defense to the charge of rape by force and is no proof of consent under the circumstances of the instant case.

The law seems to be that under such circumstances as detailed by the facts of this case the defendant should be permitted to prove, if he can, that the prosecuting witness is a common prostitute, also that he had had former relations with her, but the mere fact of her former relations with other men would be no evidence of her consent to this relationship with the accused. A very able discussion and summary of the law is found in an opinion by Judge Christian in the case of Graham v. State 67 S. W. (2d) 296. See also Branch’s Annotated C. C. P., pages 1003-4. A woman who has been intimate with some trusted person, or even more than one, should not, by reason thereof, be subjected to the ravages of merciless men or lowered to the status of a common prostitute. On the other hand, if she is such, the fact may well be considered by the jury as touching her credibility as a witness. If she has had former relations with the accused, his story of consent would be more readily believed by a reasonable jury. This will serve to dispose of appellant’s first bill of exception.

Appellant presents seven bills of exception upon which he asks that this case be reversed. Several of these pertain to the same thing and the law involved may be discussed relative to all such as one. Other evidence admitted over objections of appellant, as reflected by several of the bills, had the effect of informing the jury that appellant was a married man. If there was error in admitting this testimony at the time the proceedings were had, it was cured by the fact that appellant as a witness in his own behalf several times made statements relative to his wife, both on direct examination voluntarily and on cross examination without objection. It is well settled that he was thereafter not in position to complain of its admission.

The same reasoning and the same testimony dispose of the complaint included in bill of exception number six, embracing the argument of the prosecuting attorney wherein he said “this little girl found herself in the hands of two married men, Tyler and Jamison.”

Bill of exception number seven complains of the failure of the court to give the requested charge affirmatively presenting an issue on the question of penetration. The court qualifies this bill with the statement that there is no issue on the subject. The record is conclusive on that question and the charge would have been improper.

Finding no error in the record of the case before us, the judgment of the trial court is affirmed.