Brown v. State ( 1929 )

Appellant insists that we erred in our disposition of his bill of exceptions No. 5. From same we learn that while appellant was on the witness stand certain garments were brought before the jury by the State's attorney, to the exhibition of which before identification, appellant objected. State's counsel then asked appellant in reference to an under-suit. He denied any knowledge of same. He was then shown a towel which he said looked like one he owned. He was then shown a pair of bloomers and said they belonged to prosecutrix. He was then asked what was on the bloomers, and replied "Dirt." The State's attorney then said: "And that's blood, isn't it?" to which he answered "Yes, sir." At this point appellant made various objections, none of which seem verified further than as above appear, which were overruled. Nothing in the bill shows the connection of said clothes with the offense on trial, or that same were introduced in evidence, or otherwise used or referred to during said trial. For aught we know the bloomers may have served to solve some disputed issue. Trigg v. State, 99 Tex.Crim. Rep.; Sec. 1855, Branch's Annotated P. C. The court qualifies the bill, as stated in the original opinion. Same is so vague and indefinite as that we are not able to agree with appellant's contention that it shows error.

Appellant insists that we erred in not sustaining his motion for new trial upon newly discovered evidence based upon affidavits thereto attached. In the original opinion we discussed these matters at some length, — our attention not being called to the fact that all of said affidavits were taken before appellant's counsel acting as notary public. Our attention now is called to this fact. Under all the rules such affidavits can not be considered. Miles v. State,99 Tex. Crim. 337. See authorities collated in Branch's Annotated P. C., Sec. 194.

Appellant also contends that we did not consider but one point raised in his bill of exceptions No. 8, which complained of the refusal of a special charge. Said charge asked for a peremptory instruction upon a number of grounds, one of them being that there was a fatal variance between the indictment and the proof. While this is stated as a fact in said special charge, our attention is not called to any such variance. The special charge is further based upon the fact that the State failed to prove by evidence that defendant used force as alleged in the indictment. Such failure in a case where the female is alleged to be under the age of consent seems held of no avail to the accused. Fields v. State, 39 Tex.Crim. Rep.; Buchanan v. State,41 Tex. Crim. 128; Gray v. State, 43 Tex.Crim. Rep.. Said instruction was further sought on the ground that the evidence failed to show the prosecutrix not to be the wife of appellant. The proof in this case showing the prosecutrix to be of the tender age of eight years, no further testimony would be needed to establish the fact that she was not appellant's wife. Hardy v. State, 37 Tex.Crim. Rep.; Munger v. State,57 Tex. Crim. 384. A further ground of a request for such instruction appears to be that the State failed to corroborate the testimony of the alleged injured female. Such corroboration seems held not necessary under the authorities cited in Sec. 1774, Branch's Annotated P. C.

Believing the case properly disposed of in the original opinion, the motion for rehearing will be overruled.

Overruled.