Williams v. State , 88 Tex. Crim. 214 ( 1920 )

Appellant was convicted of rape upon a girl between thirteen and fourteen years of age.

The facts, to say the least of it, are peculiar. The house where the offense occurred consisted of two rooms and a small kitchen. There seems to have been about four girls, all under eighteen years of age, present, the prosecutrix being one of them. Appellant was related to some or all of them. As they express it, he was about third cousin. He was in one of the rooms lying on a cot. Prosecutrix laid down by him. Shortly after she did so appellant made a request for carnal favors, which she said was all right. She pulled up her dress and prepared herself to receive his attention. He promptly complied, and, according to her testimony, went through a complete act of carnal intercourse. The other girls were present and witnessed the whole matter. They describe it in detail, differing some what, but all agree that he was on top of the prosecutrix. After this occurred, some of the witnesses testified that he got up, washed his hands, and others disagree as to this fact. He remained and took the evening meal and went away. The old grandmother was not present but "down on the river washing." Under the testimony the act seems to have been performed under the peculiar circumstances of having eyewitnesses. But for the question of age this could not be rape, but the girl being under eighteen years of age, even with the consent of the girl, appellant violated the law and would be guilty.

When prosecutrix was offered as a witnesses she was put through a voir dire examination as to her competency and qualification to testify from the standpoint of intelligence. This quotation is made from the bill: "I do not understand what is meant by swearing to testify — by taking an oath to testify — when I hold up my hand and swear that I will tell the truth, the whole truth and nothing but the truth so help me God. I don't know whether that obligates me to tell the truth or not. I know that it is wrong to tell a story whether I swear to it or not. I don't know whether there would be any punishment for me in the future if I swore to a falsehood or story. I don't know what I think about it." Objection was urged that this did not qualify her as a witness; in other words, it showed she was incompetent to testify. The court signs the bill with this qualification: "That the court found that the witness was intelligent for a negro girl, and as competent as any ordinary witness even above the age of twenty-one years, and from her manner of testifying the court was satisfied that she fully understood the difference between right and wrong, that it was wrong to swear falsely, and that she was competent to testify." As qualified the bill was accepted by appellant. An examination of the record would disclose a much more extended examination of the prosecutrix than is shown by the bill, but in any event we are of opinion that as qualified by the court and accepted by appellant the court was not in error in permitting her to testify in the case. Her evidence in detailing the transaction as it occurred, generally and in detail, shows with sufficient certainty and definiteness that she could give a detailed account and rather an intelligent account of the whole matter.

There are other bills of exception reserved not only to the prosecutrix testifying but to the other girls, because they were all under the age of eighteen years and could not be punished for perjury, under an indictment for perjury, but would be sent to the juvenile training school for delinquents under Chapter 26 of the Fourth Called Session of the Thirty-fifth Legislature. That Act provides where the girl is under eighteen years of age and is charged with a violation of the law, she may be sent to the juvenile reformatory and training school. This depends upon either the option of the delinquent in choosing to be prosecuted as a delinquent instead of for a violation of the law for which she would otherwise be punished, or this option may be suggested to the court by other parties. The theory of the defense was that because she might not be punished for perjury and could not unless she desired so to be, and if not she would not be subject to the pains and penalties for perjury as required by the Constitution in taking the oath as a witness. Article 1, Section 5, of the Constitution provides that all oaths or affirmations shall be administered under the pains and penalties of perjury. The Legislature under Article 34 P.C., provided that no child under the age of nine years could be punished for any offense, and where they were between the age of nine and thirteen the burden of proof was upon the State to show that they were responsible and subject to punishment. In Frazier v. State, 84 S.W. Rep., 360, this court held that a child under nine years of age could not be punished for perjury. This led the Legislature to amend that article, and it now provides that no person shall in any event be convicted of any offense before he is of the age of nine, except perjury, and for that only when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath, etc. That article was amended as thus it reads to meet the decision of Frazier v. State, supra. The same question came before this court under the amendment of Article 34, supra, in Moore v. State, 49 Tex.Crim. Rep.. It was there held that, the old article being repealed by the amended article, it was no longer of binding force and effect, and the rule now is that all children of any age who testify may be subject to the pains and penalties of perjury, provided they have sufficient intelligence to know right from wrong as to the particular act in giving their testimony. This would not relieve prosecutrix of conviction for perjury under an indictment charging that offense, unless she did in some manner claim the exemption under the delinquent child act. If that was set up, then the court would dismiss the case of perjury and try her under the Act of the Fourth Called Session of the Legislature,supra. It would be as much a violation of the law in one case as in the other. The facts would be the same and the perjury the same, but under the delinquent child act she would be entitled to be sent to the reformatory instead of the penitentiary. It changed the manner of enforcing the law, but does not change the crime nor the necessary facts. It changes the manner of trying it and the manner of charging it, but the offense would be the same so far as the act of the child in testifying is concerned. It does not relieve her of punishment, but changes the place of punishment and the mode of trial. What is said with reference to prosecutrix may be said also with reference to the other witnesses, all being under the age of eighteen years, and all girls.

While the facts are peculiar and unusual, still the evidence we think is sufficient, and the judgment will be affirmed.

Affirmed.

ON REHEARING. November 24, 1920.