Murley v. State , 105 Tex. Crim. 276 ( 1926 )

The appellant was convicted in the District Court of Grayson County for the offense of rape, and his punishment assessed at seven years in the penitentiary.

The record discloses that the appellant was convicted of rape by force upon Johnnie Dalton, a girl under the age of consent. It was the contention of the state, and evidence was introduced to that effect, that the appellant was going under the assumed name of Dr. Harris, and pretending to be a chiropractor; that he had given the prosecuting witness, in the presence of her mother, two adjustments, or what he termed adjustments; that he called again at a time when he knew the mother would be absent and insisted upon giving the prosecuting witness another adjustment, under the pretext that he could not be in town at a time when her mother would be present; that the prosecuting witness reluctantly consented that he treat her, or give her an adjustment, in her mother's absence, and that during the process of the pretended treatment appellant forcibly and without her consent had intercourse with her. The appellant defended upon the ground that he was not present at the time and place of the alleged offense, but was elsewhere. He took the stand in his own behalf and testified in support of the foregoing contention. It is disclosed by the record that appellant's name was not Harris, but his true name was Murley, and that he was not a chiropractor, but a painter and a paper hanger.

The record discloses eleven bills of exception. Complaint is made in bill of exception No. 1 to the action of the court in permitting the state to show by the prosecuting witness, Miss Johnnie Dalton, and her mother that on Saturday, September 27th, prior to the alleged rape on the 29th, the appellant told said witnesses that he was a chiropractor from El Paso, that he was going to open up an office in the town and desired to give the prosecuting witness a treatment, and that he wanted an office girl and would give the prosecuting witness employment at a salary of $15.00 per week. The appellant objected to said testimony upon the ground that he was not charged with any offense on the 27th, but was charged with an offense on the 29th of September. We are of the opinion that there is no merit in this contention, and that the court committed no error in admitting said testimony.

Bills Nos. 2, 3, 4, 6, 7 and 11 complain of the action of the court in permitting the state to prove by certain state's witnesses that the appellant had told them that he was Dr. Harris, a chiropractor, and had offered to employ one of the witnesses, a young lady, as stenographer, claiming that he had an office in town. Appellant objected to this testimony because it was immaterial, prejudicial, an attempt to show other transactions which would not prove or disprove any issue in the case, and was not in rebuttal of any evidence offered by the appellant. These bills further disclose that this evidence was offered in chief by the state prior to the time appellant took the stand or tendered any evidence in his own behalf. It was error for the court to permit the state to introduce this evidence in chief, and the same should have been introduced and offered in rebuttal of the appellant's contention, and his evidence, to the effect that he was not present at the time and place of the offense, but was elsewhere, and that his name was not Harris and he had never gone under said name, or told anyone that he was a chiropractor. However, we are of the opinion that this error in admitting said testimony prematurely, under the peculiar facts of this case, is not such an error as would warrant this court in reversing the case. Gregory v. State, 92 Tex. Crim. 518,244 S.W. 615; Nichols v. State, 97 Tex.Crim. Rep.,260 S.W. 1053. This court, in both of the foregoing cases, held that the premature introduction of testimony of a similar character was not such error as would justify a reversal of the judgment of the lower court.

The contention made by appellant to the effect that said evidence was going into extraneous matters disconnected with any issue upon trial, and therefore inadmissible, is not well taken. One of the exceptions to the rule forbidding proof of other offenses and transactions is when it becomes necessary to show identity, system, or tends to connect defendant with the offense with which he is charged. We think this evidence came clearly within the exception to the general rule, and the court properly permitted the state to introduce said testimony on the question of the identity of appellant. See Branch's Ann. P. C., Sec. 166, citing Gilbraith v. State, 41 Tex.Crim. Rep.; Gray v. State, 178 S.W. 337; Henderson v. State, 172 S.W. 794, and many other authorities. See also Branch's Ann. P. C., Sec. 2347, citing Johns v. State, 174 S.W. 610; Nowlin v. State,175 S.W. 1070. Also see Gregory v. State and Nichols v. State, supra.

Bill No. 5 complains of the action of the court in permitting the state to prove by Dr. Long that after the alleged offense he examined the prosecuting witness and found "no hymen present," and that such a condition would prevail when a girl of her age had intercourse with a man; appellant's contention being that said examination was too remote from the date of the alleged offense. We are unable to agree with this contention and think the objection would go more to the weight than to the admissibility of this evidence.

Bill No. 8 complains of the refusal of the court to permit the appellant to show by the witness, Matthews, an account of one Bronstead, which appellant contends would corroborate him on the question of an alibi. This bill is in question and answer form, which precludes our consideration of same.

Bill No. 9 complains of the action of the court in permitting the county attorney to ask appellant, on cross-examination, if he had ever been charged with the offense of assault with intent to rape, appellant's objection being to the effect that the indictment would be the best evidence and that same was of a prejudicial nature. We think this contention is untenable, and, as shown by the bill, the testimony was admissible for the purpose of discrediting the testimony of the appellant. In no event was the question harmful in this instance, as the appellant, in his answer, denied any such charge.

Bill No. 10 complains of the action of the court in permitting the state to prove by G. W. Price, a policeman, that on September 29th he was called out to investigate this alleged rape, that a description of the assailant was furnished him, and that he afterwards arrested the appellant, Murley, some time in the following November. The witness further testified that he had been looking for said assailant under the name of Harris until the date of the arrest. The objection urged to this testimony was that it was irrelevant and immaterial, a different transaction, at a different time, prejudicial, and did not tend to prove or disprove any controverted issue in the case. This bill, as presented, shows no error, because part of the evidence was admissible and the objections urged went to the whole testimony.

After a careful examination of the entire record, and finding no reversible error therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.