Hollingsworth v. State ( 1917 )

PRENDERGAST, J.

(dissenting). The second sentence in Judge MORROW’S opinion herein is: “The act of intercourse was sharply controverted.” In this I think he is mistaken. On the contrary, the evidence, both positive and circumstantial, establishes the intercourse by appellant with his niece, without any shadow of doubt. He and no other for Mm denied it. He did not testify at all. He merely pleaded “not guilty.” Three juries of 12 fair and impartial men each time have three times found him guilty “beyond a reasonable doubt.” An able, fair, experienced, and upright judge has so held three times. There can be no doubt of his guilt in fact or in law.

The letter by appellant to Oassie Dunn, or copy of it, as proven upon the first trial, and copied in the opinion on the first appeal (182 S. W. 479), was clearly admissible, as at first unanimously held in the original opinion on that appeal, and as further demonstrated by authority and reason in my dissenting opinion on that appeal (182 S. W. 485 et seq.). Doubtless in deference to the majority opinion finally on that appeal, that letter was not offered in evidence on this third trial. But, even if it was not, the argument of the state’s attorney in supposing such a letter does not present reversible error.

It was in direct response to, and invited by, appellant’s attorney’s argument and taunt of the state’s attorney, as shown by the bill as given by Judge MORROW in his opinion herein, and the state’s attorney could well suppose, and so argue to the jury, that she wrote such a letter to him.

Justice, though long delayed, has been meted out to appellant herein, and this judgment should be affirmed, not reversed.