Alexander v. State , 199 S.W. 292 ( 1917 )

MORROW), J.

This is a conviction for incest, with punishment fixed at confinement in the penitentiary for a period of 10 years.

[1] The other party to the transaction, as charged in the indictment, is Docia Alexander, a daughter of appellant. Her testimony, with corroboration, supports the verdict. No abuse of discretion is shown in overruling ap-j : pellant’s application for a continuance. It appeared from the court’s qhalification that there was no probability of securing the personal attendance of one of the witnesses, and that ample opportunity to procure her testimony by other means had been afforded and declined, and that the other absent witness was present at the hearing of the motion for new trial and was not called upon to verify the truth of the allegations in the motion for a continuance as to his testimony. Hunter v. State, 59 Tex. Cr. R. 439, 129 S. W. 125; Lane v. State, 59 Tex. Cr. R. 595, 129 S. W. 353; Vernon’s C. C. P., p. 320, note 32, and cases cited, also, page 322. In the application for continuance the testimony of the absent witness Dameron was to the effect that the prosecuting witness Docia had asked him to procure poison that she might administer it to her father so that she might be free to have a good time with boys. In the motion for new trial it is shown that the witness would not have given the testimony as to the poison as to Docia, but would have given it as to her sister, who was a witness in the case. The evidence sought, as was the other testimony of Dameron, if admissible, was impeaching in its nature, the absence of which, under the decisions of this court, does not demand a new trial. Michie, Cr. Digest, vol. 2, p. 87, cases listed; Vernon’s C. C. P. p. 317, note 25, cases listed.

[2] One of appellant’s complaints is based upon the refusal of the court to exclude evidence of acts of intercourse other than that on the date named in the indictment. The question of law thus abstractly presented has long been a subject upon which there has been a diversity of opinion expressed in the decisions of this court and the dissenting opinions of its judges. Illustrative are Clifton v. State, 46 Tex. Cr. R. 21, 81 S. W. 723, 66 L. R. A. 727, 108 Am. St. Rep. 1035, Gillespie v. State, 49 Tex. Cr. R. 531, 93 S. W. 556, Skidmore v. State, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 466, and Pridemore v. State, 59 Tex. Cr. R. 564, 129 S. W. 1112, . 29 L. R. A. (N. S.) 858, excluding such evidence, and Burnett v. State, 32 Tex, Cr. R. 86, 22 S. W. 47, Williamson v. State, 72 Tex. Cr. R. 618, 163 S. W. 435, Van Smith v. State, 64 Tex. Cr. R. 454, 142 S. W. 1173, Cain v. State, 68 Tex. Cr. R. 507, 153 S. W. 147, and Vickers v. State, 75 Tex. Cr. R. 12, 169 S. W. 669, declaring it proper. Without an extended review of the subject, the writer is of the opinion that the receipt or rejection of such evidence is to be determined by the facts of the case in hand, and that it often becomes admissible as tending to solve a controverted issue. Appellant stoutly denied the intercourse with his daughter, and by cross-examination of her and other witnesses for the state endeavored to discredit her testimony and her motives for giving it. She was 14 years of age. She was unable to testify to an act oí intercourse specifically coinciding with tiie date charged in the indictment. She testified to a series of acts of intercourse with appellant covering a period of about a' year preceding the date related in the indictment and coming up approximately thereto. In some of this she was corroborated by her sister about a year older than she. The exact occasion upon which the offense was committed was the subject of controversy, ana the fact of intercourse at all was sharply in issue. We think the evidence admitted was relevant, under the circumstances to aid in solving these issues.

There are no exceptions to the court’s charge, though some special charges were requested. One of these involves the proposition that the sister of Docia Alexander became an accomplice by reason of her knowledge of the intercourse between her father and her sister and her failure to remonstrate or disclose it. The daughters of appellant were, respectively, 14 and 15 years of age. Their mother was dead. They were members of their father’s household and under his control. We do not think the fact that the sister had knowledge of the transaction, under the circumstances, made her an accomplice, or raised that issue. Noftsinger v. State, 7 Tex. App. 324; Branch’s Crim. Law, § 319, and cases listed. The other charges requested are covered by the main charge in so far as they related to the evidence. The bill presenting the charges is quite indefinite, simply stating the charges, numbers 1 to 5, inclusive, were presented in due time and refused by the court and the exceptions taken. None of the charges are set out in the bill, either in tenor or effect, nor are there reasons assigned showing their applicability to the case. C. C. P. art. 743; Vernon’s Cr. Statutes, vol. 2, p. 521, note 57, and cases cited. We have read them in connection with the other parts of the record and reached the conclusion that, if more definitely presented, our views as to the disposition of the case would not be affected thereby.

[3, 4] Appellant suggests in his brief that there was evidence of acts of intercourse between appellant and the sister of Docia Alexander ; thát, while this testimony was withdrawn, it was of such damaging character that its withdrawal did not cure the error in its introduction. If it was shown that such evidence was introduced over appellant’s objection, we would regard it as very serious. In ' the absence of bill of exceptions, however, showing that it was introduced and that appellant objected to it, the subject is not brought before this court for review. C. C. P. art. 744; Vernon’s C. C. P. p. 554, and cases cited. There is copied into the record a bill of exceptions prepared b'y appellant; but the judge refused to approve it, and the appellant failed to verify the facts by bystanders. The law precludes the consideration of the matter.

[5, 6] The district attorney, in his argument closing the case, declared that:

“Defendant after the death of his wife became a wild demon. * * * This is a case that deserves bitterness.”

The following quotation from the bill is taken:

“Then stating with reference to his talk and 'conversations with witness Docia: ‘The more I talk with her, the more I am impressed with her truth. Defendant never did try to find the author of Docia’s shame. ** Look at that satanic grin and laugh on his face.’ ”

Without approving the terms selected by the district attorney in the argument mentioned, and considering alone the question of law involved in the bill, we think that, viewed in the light of the previous opinions of this court, particularly that of Morris v. State, 39 Tex. Cr. R. 371, 46 S. W. 253, Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052, Kemper v. State, 63 Tex. Cr. R. 32, 138 S. W. 1025, and other cases cited by Mr. Branch in his An. P. C. pp. 205, 206, reversible error is not disclosed. The court in qualifying the bill states that the reference to the grin and laugh was provoked by the defendant laughing during the argument, which seems to bring that part within the rule of invited argument. See Branch’s An. P. C. p. 205, § 363, and cases cited. We do not think that the argument with reference to his impressions of the witness Docia comes within the rule which inhibits the prosecuting attorney from giving testimony in his argument. We are of opinion that the bill does not show conduct of so grave a character as to obviously show injury and prejudice against the appellant, such as could not be cured by withdrawal in a special charge. The remarks were such that if he deemed them improper he could, in a special charge, have sought their withdrawal. Branch’s An. P. 0. p. 204, § 362, and cases cited.

Counsel, in a brief displaying commendable and exhaustive research, have presented the matters discussed and others in the record. After a careful examination of them, we are constrained to believe that the record does not disclose that appellant’s trial was unfair, or that there was departure from the procedure provided by law to protect his rights.

It is therefore ordered that the judgment of the lower court be affirmed.

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