Johnson v. State

Hurt, Judge.

This is a conviction for rape, the punishment imposed being imprisonment in the penitentiary for ninety-nine years.

We desire to notice specially but three matters. First, in forming the jury, John Watson, a member of the special venire, being examined touching his qualifications as a juror, stated, in answer to questions, that he could read and write a little, but not much; that he could read print and could write his name, but could not read hand writing unless it was very plainly written. The State challenged for cause, which was sustained by the court, and defendant excepted.

We have examined all the cases accessible bearing upon this subject, but find none directly in point. We are of the opinion that the juror was incompetent. The statute must have intended something practical. That a person can write his name certainly does not fill the measure of the statutory requirement that the juror should be able to write. We think that he should be able to express his ideas in words upon paper, with pen or pencil. (Rainey v. The State, 20 Texas Ct. App., 473.)

Gr. W. Verness, a member of the special venire, being examined touching his qualifications, in answer to questions propounded on the part of the State, stated that “he had heard a portion of the evidence on the habeas corpus trial, and had then formed an opinion in reference to the guilt or innocence of defendant, but that this opinion, so formed, would not now influence his verdict, and that he could, notwithstanding such former opinion, render an impartial verdict according to the law and the evidence.” At the instance of the State, and over objection by the defense, he was held incompetent, and defendant reserved a bill.

We are of the opinion that this juror was competent. It will he noticed that the juror did not state that he had at that time a formed opinion, but from the trial it would seem that he referred to the former opinion. Whether lie then had an opinion does not appear from the record. But, let us suppose that he had, and entertained this opinion up to the time of the trial. He states that it would not influence his verdict, and hence, without further examination developing that probably such opinion would affect his verdict, we think he was competent. It was error to reject the juror. (Thompson v. The State, 19 Texas Ct. App., 611.)

Second. Over the objection of defendant, the State introduced in evidence the conduct and declarations of Anna Knuppel, the prosecutrix, after the commission of the offense. These declarations, etc., are claimed by the State to be admissible as the res gestee. The rule upon this subject will be found clearly stated and illustrated in Wharton’s Criminal Law, volume 1, section 566, thus: “In prosecutions for rape, the party injured being a witness, it is admissible to prove that she made complaint of the injury while it was recent, but the particulars of her complaint have been held not to be evidence, except to corroborate her testimony when attacked. And in any view, such statements can not be received as independent evidence to show who committed the offense. * * * Since such evidence is admissible merely as corroboration, it can not be used to patch out the case of the prosecution by supplying new facts. Thus, on the trial for rape which came before the Virginia Court of Appeals, the main question was as to the identity of the prisoner. The female was examined, and, although she swore positively that the prisoner was the person who committed the outrage upon her, she declined to give a description of him as at the time of the outrage. The commonwealth then introduced a witness to prove the particulars of the description of the person who committed the outrage, given by the prosecutrix to the witness on' the morning after the rape was committed. This, for the reason just given, was properly held inadmissible.” (See also 2 Bish. Crim. Proc., sec. 963.) If the State could not show in this manner who committed the offense, certainly the description of the offender given by the prosecutrix can not be introduced in evidence.

Third. There was testimony of quite a number of witnesses very strongly supporting an alibi. Upon this subject the learned judge charged the jury that the defendant relies on ah alibi as a defense; that is, on proof that, at the time of the offense, if any was committed, he was at another place, which rendered it impossible for him to have been present at the commission of the offense. On this issue the burden of proof is on the defendant, to show by a preponderance of evidence the facts establishing the alibi. But if the defendant has shown such facts as raise a reasonable doubt as to whether he could have been present at the commission of the offense * * or not, you will acquit him.”

These propositions are inconsistent and in direct conflict. If the burden of proof is on defendant to establish his alibi by a preponderance of evidence, then the doctrine of reasonable doubt can not possibly apply. Whenever, in a criminal or civil case, a party is required to prove a fact (and this always means by a preponderance of testimony), the reasonable doubt does not obtain, and can not be applied to the negative or opposite of such fact.

If A. be at Galveston at a given time he is guilty, but if at Houston at that time he is not guilty. The burden is on A. to prove that he was at Houston. If this be so, a doubt that he was at Galveston is not in the proposition, because he must prove that he was at Houston, and this proof must be made by a preponderance of evidence; and a doubt that he was at Galveston does not aid his proof that he was at Houston. On the other hand, his proof that he was at Houston may not be by a preponderance of the evidence, but amply sufficient to raise a reasonable doubt that he was at Galveston.

Let us view these propositions at work. One of the jurors says: “I doubt that A. was at Galveston.” To this another replies: “So do I, but has A. proved by a preponderance of evidence that he was at Houston?” “Ho,” says the first, “but I doubt, from his evidence in support of his being at Houston, that he was at Galveston.” “But,” replies the other, “I know that he has not proven by a preponderance of testimony that he was not at Galveston, and we are instructed by the judge that he must do' this,—that this burden is upon him.” In comes the third juror, and suggests that the only way out of this trouble is to obey all that the judge says upon this subject. To this all agree. “How then,” says he, “ we will hold defendant to the proof that he was at Houston, for we are told by the judge that the burden is on him, and that he must prove by the preponderance of the evidence. Has he discharged this burden?” All say: “Ho.” Then he must be convicted. But if he has discharged this burden, then the jury might have a reasonable doubt of his being' at Galveston. But the first juror replies: “The judge charged us that if defendant has shown such facts as raise a reasonable doubt as to whether he was at Galveston or not, we should acquit.” To this all agree; but the second juror says: “We are also very plainly told by his honor, that the burden is on him to prove that he was not at Galveston, and this must be done by the preponderance of evidence, and we have all agreed that it has not been done by him.”

We have adopted the above manner of showing that the two propositions are in conflict, and not at all consistent; and for the further purpose of showing that they are misleading, and calculated to confuse the jury. We desire simply to add that it is well settled in this State, that the burden of proving an alibi is not on a defendant; that an alibi is an attack on the presence of defendant at the place of the crime, and hence an attack on guilt.

Opinion delivered May 25, 1886.

For the errors noticed, the judgment is reversed and the cause remanded.

Reversed and remanded.