Tackett v. State

Appellant complains in his motion because of the failure of the original opinion herein to contain any notice relative to the trial court's failure to give in charge to the jury his requested charge No. 9. This charge embodies an effort on the part of appellant's attorney to have the trial court single out an isolated fact, and to charge the jury on the significance of such fact, thus endeavoring to obtain a charge on the weight of the evidence. See Wair v. State, No. 20241, opinion delivered May 31, 1939, and not yet reported. (Reported under cases of October 25, of this volume.) It was an effort to submit to the jury what was a reasonable time in which to make an outcry relative to what the appellant had tried to do to her at the time she received a broken arm, and whether or not at the time she made the outcry an unreasonable time had elapsed after the occurrence, and if such a time had elapsed then the appellant could not be convicted upon the uncorroborated testimony of the prosecutrix. In other words, appellant desired the court to submit to the jury the question as to what would constitute a reasonable time in which this young lady should have made an outcry and tell what her version was as to the cause of her broken arm, and what the appellant tried to do to her on the occasion in which she sustained her injury. In support of this contention we are cited to the case of Black v. State, 2 S.W.2d 459, and we here quote therefrom: "Complaint was made of the charge on the ground that it did not tell the jury that there could be no conviction on the uncorroborated testimony of the prosecuting witness, but such a charge is so manifestly deemed incorrect as to amount to no exception. Appellant asked one special charge, consisting of an enumeration of a number of facts and points so as to make it plainly on the weight of the evidence, and its refusal was not erroneous."

The language in the above excerpt can be used herein in disposing of this matter. It is here worthy of note that although the young lady told all inquirers on the night of the alleged offense that she fell off a bridge, it does not appear from the statement of facts when she first told of her alleged mistreatment by appellant. We are thus left uninformed of the time elapsing between such two statements, and had the court acceded to appellant's request and submitted to the jury the question of a reasonable time in which to make an outcry, we fail to see upon what testimony they could have based any finding thereon. The young lady gave her explanation of the reason for stating she had been injured in a fall from a bridge, and the jury evidently believed the same, and the requested charge, in our opinion, should not have been given.

We are again asked to review appellant's requested charge No. 10, and it is insisted that a failure to give same was error. The charge requested was relative to the prosecuting witness' testimony, and her contradictory statements as to how she had suffered the broken arm. The requested charge closes with the following statement: "You are instructed that you will consider such contradictory statements in passing upon said credibility of said witness as affecting her credibility."

We do not think this charge should have been given. It would have limited the testimony complained of to the credibility of the witness, while under the law it seems to us this testimony should have gone in unlimited, and should have applied to the whole case and not alone to the credibility of this witness. While its immediate effect was to attack her credibility, it occurs to us that it could have been used in the broader sense, and could have been utilized by the jury without any limitation. This charge was further incorrect in that it was upon the weight of the evidence. It also is subject to the construction that it instructed the jury that the witness' credibility was affected by the failure to make an immediate outcry. We do not think any error was committed in refusing the requested instruction.

There is also complaint made of the court's refusal to give special requested instruction No. 11, which was to the effect that if the prosecutrix failed to make an outcry "for some future time," then in effect the testimony of the prosecutrix required corroboration. We are unable to tell what the facts are relative to what was "some future time." We do not know from the record when she first made complaint relative to her treatment by the appellant. We only know that immediately after having suffered a broken arm she told her relatives and friends that she fell and broke such arm. How long it was before she changed her story we do not know, and can not find out from the record. We therefore think that this charge is not shown to be applicable under the facts, and we think no error is shown in its refusal.

We think this case properly disposed of in our original opinion, and the motion will be overruled.