Cloninger v. State , 101 Tex. Crim. 1 ( 1925 )

Conviction is for rape. The punishment is five years in the penitentiary.

On October 29th, 1920, there were returned into the district court for Denton County, two indictments against appellant both charging him with rape upon Euleta Croft, a female under eighteen years of age. In cause number 5889 the offense was alleged to have occurred on or about August 1st, 1920, and in cause number 5890 the date of the offense there charged was on or about October 7th, 1920. Cause No. 5889 was tried at a former term of the court. At that trial the State proved an act of intercourse between appellant and prosecutrix in "Eagan's pasture." On cross-examination of prosecutrix appellant developed the fact that the act in "Eagan's pasture" was not the first such act between them, but that a prior act of intercourse took place at a garage in the city of Denton. However the State elected to proceed on the act in "Eagan's pasture." A conviction resulted. The judgment was reversed because by reason of the prior act in the garage prosecutrix was unchaste at the time of the transaction relied on by the State. (Cloninger v. State, 91 Tex. Crim. 143, 237 S.W. 288; Art. 1063, Complete Texas St. 1920, Acts 1918, 4th C. S. Ch. 50, Sec. 1.) The mandate of this court was returned to the court below, and when this cause (No. 5890) was called for trial both cases were still pending. Appellant filed a motion to compel the State to dismiss cause No. 5889. This being overruled he requested a postponement of the trial in cause No. 5890 until cause No. 5889 had been disposed of; this being denied he then filed a plea of former jeopardy based upon the facts heretofore recited. The plea of jeopardy was overruled by the learned trial judge, who declined to permit it to be read to the jury, or to submit it for their consideration. These rulings of the court are made the subject of exceptions.

While the date of the offense as charged in the indictment in the present case was subsequent to the date charged in cause No. 5889, it is shown that the State was relying and did rely on the prior act of intercourse claimed to have occurred in the garage. This it had a right to do, the evidence showing it to have taken place within the period of limitation. This cause (No. 5890) had been set down for trial, and a special venire drawn and summoned from which to select the jury. Cause No. 5889 had not been set down for trial. The court was not bound absolutely to dispose of the cases on his docket in the order in which they appeared thereon. (Simpson v. State,263 S.W. 273). We find nothing in the record to indicate any injury to appellant by reason of the court's action in permitting cause No. 5889 to remain on the docket. If that case was ever mentioned or referred to in any way in the presence of the jury we are not made aware of it.

The plea of jeopardy might very properly be dismissed from consideration on the ground that the case relied on as a basis for such plea had not been merged into a final judgment, but the conviction had been set aside. Brill v. State, 1 Texas Crim. App. 153, Lewis v. State, 1 Texas Crim. App. 323; DuBose v. State, 13 Texas Crim. App. 418; Robinson v. State, 23 Texas Crim. App. 315; Maines v. State, 37 Tex.Crim. Rep., 40 S.W. 490; Coleman v. State, 43 Tex.Crim. Rep., 65 S.W. 90. But if this were not true we think the plea of jeopardy untenable for another reason. The cases cited by appellant support the proposition that after a plea of not guilty to all counts in an indictment, then after a new trial is granted or a reversal of the judgment is had defendant cannot be prosecuted in a subsequent trial on the abandoned counts. Tracy v. State, 49 Tex.Crim. Rep., 90 S.W. 308; Broadnax v. State, 150 S.W. 1169; Betts v. State, 60 Tex.Crim. Rep.,133 S.W. 251. Many other cases to the same effect will be found collated under Sec. 628, page 318, Branch's Ann. P. C. Appellant's plea is based on no such condition. The indictment under which the former trial and conviction occurred contained only one count charging rape. The evidence developed two acts of intercourse upon either of which the State could have maintained a conviction but for the statute (Acts 1918, 4th C. S. Ch. 50, Sec. 1) making unchastity a complete defense where the female is between fifteen and eighteen years of age, thus preventing conviction for any act of intercourse subsequent to the first. It appears from the plea of jeopardy itself that in the former trial the State elected to prosecute on a subsequent act in "Eagan's pasture". The charge restricted the jury to that transaction alone. Before a plea of jeopardy can be sustained it must appear that the former trial was upon the same identical criminal act for which the State is again seeking to place accused upon trial. This idea is excluded in the present instance. Each act of intercourse with a girl under the age of consent is ordinarily an offense. If evidence of more than one act is admitted and a conviction for either could be had under the indictment, and neither the State nor the court elects one particular act on which conviction is sought, a plea of former conviction would be good upon a subsequent prosecution based on any one of the acts or offenses proved upon the other trial, it being uncertain for which one the conviction was had; but this is not the rule where an election was made and the jury restricted to one particular act, for then no uncertainty obtains as to the transaction for which conviction occurred. Deshazo v. State, 44 S.W. 453, Piper v. State, 53 Tex. Crim. 550; 110 S.W. 899; Alexander v. State, 53 Tex. Crim. 553,110 S.W. 918; Fears v. State, 178 S.W. 519; Griffey v. State, 56 S.W. 52. The act of the State upon the other trial in electing to ask a conviction on the transaction in Eagan's pasture did not acquit appellant of the act in the garage. It is well settled that where a plea of jeopardy is good in law if the facts therein alleged can be sustained it is error for the court to refuse to submit the plea to the jury, but if conceding the matters set up in the plea to be true they present no legal issue of jeopardy the court commits no error in refusing to permit the plea to go to the jury. Hipple v. State, 80 Tex.Crim. Rep., 191 S.W. 1150; Dunn v. State, 92 Tex.Crim. Rep., 242 S.W. 1049.

In excluding the testimony offered by appellant to prove the general reputation of prosecutrix for virtue and chastity the ruling is in accord with Norman v. State, 89 Tex. Crim. 330,230 S.W. 991, holding that when accused defends against a charge of rape on the ground of the unchastity of the female who is over fifteen years of age the fact of unchastity must be shown by specific acts and not by reputation.

We have examined other matters brought forward for review and in our opinion none of them present error calling for a reversal.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.