Arnett v. State , 40 Tex. Crim. 617 ( 1899 )

By the opinion of a majority of the court this case has been reversed and remanded on the ground that the evidence does not support the verdict. I have examined the record carefully, and can not agree to this disposition of the case, without consenting to overthrow a well-established doctrine of this court, founded upon a long line of precedents, to the effect that we will not disturb a verdict, where the testimony is sufficient to support it, although to our minds the weight of the testimony may be against the verdict. In such case we concede that the judge below, who heard the testimony and saw the witnesses, is in a far better position to judge of their credibility than this court. The testimony is contained in the opinion of the majority of the court, and it is not necessary here to restate it. There is no controversy as to the act of carnal intercourse; the only question being whether or not the same was accomplished with consent, or by force and without the consent of the prosecutrix. As to this matter there is a clear conflict between the prosecutrix, on one side, and the defendant on the other; these being the sole witnesses who testified to the act of intercourse, and what occurred immediately thereafter. I do not understand, by the opinion rendered by the majority, that the court do not concede that the testimony of the prosecutrix makes out a complete case of carnal intercourse accomplished by force. It is insisted, however, that her credit is shaken because defendant has contradicted her testimony in certain particulars. For instance, there is some controversy about her giving immediate outcry. She says that while the act was being accomplished she holloed or tried to hollo, but defendant prevented her. The proof shows, unquestionably, that immediately afterwards she ran from the place to her home, holloing and screaming; for John Astin, the principal witness for defendant, testified that he heard her screams while he was at his manager's house, some 400 yards from Joe Wiley's, and it sounded as if she was 200 yards west of her house, and went down there on his horse, and met her going to her house. And I consider it all important circumstance of corroboration that he states he saw blood in her mouth, — the prosectitrix having stated that defendant struck her in the mouth. As to not finding the shoe and belt, the record does not show that anyone looked for them. Prosecutrix pointed out the place where she was thrown down; and, while Astin stated he saw no evidence of the ground being torn up, yet there were indications on the ground that some person had lain down there. And I further consider it significant that appellant did not go to his home, which was close by, but was found down near the river, under a pecan tree, by his employer, Astin. It occurs to me that the theory of the defense is extraordinary. It asks us to assume, in the face of the prosecutrix's testimony to the effect that she was raped by force, that she had copulated with defendant voluntarily, and then, because he refused to pay her, that she gave the alarm; that is, having consented to an act of copulation, because he refused to pay her she made outcry and published her own shame. This, to say the least of it, is calculated to tax one's credulity. I can not regard it as a safe rule to overturn the long-established precedents ill favor of the inviolability of verdicts which, though contradicted, are supported by evidence, and which have received the approval of the trial judge. I think the rule on this subject was well stated in White v. State, 34 Texas Criminal Reports, 153. That was a case for assault with intent to murder. There were three eyewitnesses lo the assault. The prosecutor alone made a case for the State, and he was directly contradicted by the two other witnesses, who made a complete case of self-defence. The prosecuting witness was also impeached by witnesses, who stated that his reputation was such that he ought not to be believed on oath. The jury, however, convicted defendant, and the judge below approved the sentence. On appeal this court said: "This court has sometimes interfered, even after the approval of the verdict by the court below, and granted a new trial, where there was not sufficient evidence to sustain the finding of the jury but the instances are rare where we have interfered, where there was evidence to sustain the verdict, though apparently the record disclosed that the weight or preponderance of testimony was the other way, — this court, in that regard, conceding much to the verdict of the jury, and the approval of the judge below, who saw and heard the witnesses testify, and on this account were better able to judge of their credibility than we, who have to pass upon the case from a bare inspection of the record. And in this case we follow the ride heretofore laid down, — that the jury having solved this issue presented in the testimony under a fair and proper charge of the court, and having found defendant guilty of an assault with intent to murder, and that verdict having been approved by the judge who tried the case, and there being sufficient evidence in the record to sustain that verdict, we will not disturb it." The rule above laid down has been followed from the early history of our jurisprudence up to the present time. See White v. State, 50 S.W. Rep., 1015. Suffice it to say, in this case the jury had all the testimony pro and con before them, and although the prosecutrix contradicted herself in some collateral matters, and her testimony was directly traversed by the evidence of the defendant himself, yet the jury believed her statement; and, no doubt, they felt the more inclined to do this because the testimony of appellant was discredited by an admission on his part that he had previously been indicted for a similar offense, and entered a plea of guilty on the indictment to an aggravated assault. I do not believe this court is authorized to disturb the finding of the jury, and that the action of the court makes a dangerous precedent in the administration of law.