Windham v. State , 162 Tex. Crim. 580 ( 1956 )

BELCHER, Judge.

The conviction is for sodomy; the punishment, twelve years in the penitentiary.

The prosecutrix, sixteen years of age, testified that she, her brother, mother, and the appellant (her father) were living together in their home on February 15, 1955, and during the absence of her mother and brother on that date, the appellant “made me have abnormal relations with him” by placing his penis in her mouth and told her that he would kill her and her mother if she ever told that he did it; and that appellant had had numerous sexual relations, both normal and abnormal, with her since she was eight or nine years of age which she had not reported because of his threats to kill her and her mother if she did. She further testified that on the night of February 26, 1955, when her mother refused to engage in an abnormal act with the appellant, he became angry, drew his knife which her mother slapped from his hand, and her brother, mother and herself left the house; and that she then first told her mother of the relations appellant had been having with her. Further, that they first reported this matter to the officers on February 28, 1955.

Appellant’s written confession was introduced in evidence in which he admitted committing the act here charged sometime in February, 1955, and that he had had sexual intercourse with her about every two months during the four previous years.

Appellant, while testifying in his own behalf, denied committing the act here charged, and stated that he was drunk at the time of his arrest and did not recall making the statement introduced in evidence; and contended that this charge was filed because the prosecuting witness’ mother wanted to get rid of him.

The court submitted the issue of whether Janice Ruth Wind-ham, the prosecutrix, was an accomplice witness to the jury.

Appellant insists that the trial court erred in failing to charge the jury that Janice Ruth Windham was an accomplice witness as a matter of law.

In developing its case, the state called two witnesses, the first being the prosecuting witness, Janice Ruth Windham, and the other was Deputy Constable Roden, who testified that he took the written confession from the appellant which was introduced in evidence.

Janice Ruth Windham testified that appellant had told her from the time he began having sexual relations with her, when she was eight or nine years of age, that he would kill her and her mother if she told it; that he told her on February 15, 1955, the date of the act here charged, that he would kill them if she ever told that he did it; and that on February 26, 1955, she first told of appellant’s relations with her after he attacked her mother for refusing to engage in an abnormal act with him.

Appellant, while testifying in his own behalf, denied in toto the commission of any sexual act with Janice Ruth and contended that this charge was a frame-up to get rid of him.

The record reveals that Janice Ruth, daughter of appellant, had been living in his home and was subject to his tutelage, guidance and supervision. Such relationship would naturally weaken her resistance to his advances more than if he were a stranger. The facts and circumstances herein shown surrounding such conduct during this period of time does not show that she consented or agreed to engage in such relations.

We conclude that under the record Janice Ruth is not shown to be an accomplice witness as a matter of law and that the court did not err in refusing to so charge the jury.

By Bill of Exception No. 1, appellant complains that the court erred in excluding the proffered testimony of the witness Lawrence W. Windham, brother of the appellant, as to a conversation he had with the prosecuting witness Janice Ruth Windham after the filing of the charge herein.

The bill as qualified shows that the witness, if permitted, would have testified that the prosecuting witness told him “she had told her mother about this matter of previous unnatural sex relations at some undisclosed time prior to the commission of the act relied upon in this case by the state.”

The testimony of the brother was offered for impeachment purposes.

The court further qualified this bill and certified that “No proper predicate had been laid for the proposed impeachment of the witness sought to be contradicted.”

In the light of appellant having offered the statement for impeachment purposes and the qualifications of the court, which appellant accepted, we conclude that no error is shown.

Appellant insists that the court erred in overruling his objection to the failure of the court to charge the jury that the witness, Janice Ruth Windham, would be an accomplice witness unless she made serious, determined and positive resistance to the act in question.

Such an instruction would have been a comment on the weight of the evidence, hence improper. Art. 658, Vernon’s Ann. C.C.P.; Wragg v. State, 65 Tex. Cr. R. 131, 145 S. W. 342; 12 Tex. Dig., Criminal Law, Key No. 763(6).

Finding no reversible error, the judgment of the trial court is affirmed.

Opinion approved by the Court.