Carlisle v. State , 107 Tex. Crim. 408 ( 1927 )

Conviction in District Court of Mills County of assault to rape, punishment five years in the penitentiary.

There are six bills of exception and in their discussion will appear enough of the facts. The indictment is not subject to the attack made upon it, viz.: that it stated the age of the assaulted female as being under fifteen years, appellant contending that the allegation should have been, under eighteen years. This is settled against appellant in the cases of Young v. State, 230 S.W. 416, and Tinker v. State, 253 S.W. 531.

Robert Jordan, state witness, testified that he was with appellant on the night in question at a schoolhouse where a singing convention was being held; that two girls left the schoolhouse and started toward a toilet some one hundred yards distant; that appellant looked after the girls as they went away and said: "That would be a good place to get a piece of tail." The assault occurred very shortly afterward at a point near said toilet, to which the prosecutrix and another girl had gone. The learned trial judge appends to the bill of exceptions presenting complaint of this testimony the statement that the evidence as a whole disclosed that reference was had to the two girls in question. No objection is made to this qualification. The case is one of circumstantial evidence. The assault was made in the night-time and no one was able to positively identify the assailant. We are of opinion that the testimony was admissible. Grimes v. State, 20 S.W. 758; Warren v. State,259 S.W. 575; Bethune v. State, 49 Tex.Crim. Rep..

Bills of exceptions Nos. 3 and 4 set forth objection to testimony as to similarity of tracks. Prosecutrix testified that while struggling with her assailant his hat fell off, and that he left when parties came running down. Witnesses swear that they saw appellant come back to the place where the girl was and pick up a hat. A Mr. Tolliver said he was shown the place where the struggle occurred, by the girl, and saw on the ground evidences of a wrestle and saw tracks leading from the toilet. Another witness testified that when he heard the little girl scream he ran down there and saw the bulk of someone who seemed to have on a white shirt making a circle back toward the road. Tolliver further testified that the next morning he, in company with Constable Savoy, went to the scene and followed the tracks. Mr. Savoy testified that he followed the tracks from the place of the occurrence past the toilet back east across a fence and toward the road and then back to the place of the trouble. This witness said he measured the tracks with a stick and by comparison with his own shoe. He said that the same day but later he saw appellant alone in a car; when appellant observed them he fled and the officers followed him five or six miles but stopped because of a blow-out. The witness said that a little later he followed in the direction taken by appellant and found the latter's car in a mud hole in a ditch and saw where he had gotten out of the car and made tracks going over a fence and out through a pasture. He said he measured these tracks with the same stick and by comparison with his shoe and they were, in his opinion, identical with those observed by him at the place of the assault. The giving of testimony upon the similarity of tracks is discussed in Mueller v. State,215 S.W. 93, and Israel v. State, 230 S.W. 984, the holdings therein being adverse to appellant's contention. See also Williams v. State, 132 S.W. 346; Boyman v. State, 126 S.W. 1142; Bains v. State, 66 S.W. 847. Mr. Tolliver said that the girl showed him the place of the assault, but that for himself he observed the disturbance of the condition of the ground and the tracks. We think neither bill shows error.

Appellant has a bill of exceptions complaining of the testimony of the officers that he fled, the contention seeming to be that it is not shown that he knew a complaint had been filed against him or that he was charged with any offense. Flight is a circumstance of guilt, and the matters set out in the objection, we think, go more to the weight than to the admissibility of the testimony. Appellant cites the case of Steed v. State, 276 S.W. 281, on the proposition of the inadmissibility of the testimony regarding the similarity of tracks. Said case is based on the case of Smith v. State,45 Tex. Crim. 405, which was discussed at length in the case of Mueller v. State, supra. The opinion is expressed that said authority is not opposed to what we have here said.

Being unable to agree with the contentions made, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.