Fields v. State

Appellant was convicted of the offense of rape and sentenced to twenty-five years in the penitentiary.

The prosecutrix was his step-daughter, a girl thirteen years of age. It is conceded in appellant's brief that the evidence was sufficient to sustain the conviction except for the two questions presented, as follows:

First: That the prosecutrix, being a girl between the ages of ten and eighteen, could not, by reason of the terms of the Delinquent Child Act passed by the 48th Legislature, be punished for crime and that, therefore, she is not subject to the pains and penalties of perjury and is disqualified under Art. 5 of Sec. 1 of the Constitution to give evidence in any case;

Second: That when her unfortunate condition became known, the mother inquired the name of the party responsible, and that she gave the name of another and different person to appellant; that such statement was voluntarily made for the purpose of fastening the crime on another, with the result that appellant would be shielded from prosecution. Such statements are relied upon to constitute her an accomplice witness under the statute whose evidence must be supported by corroborating facts or circumstances in order to sustain the conviction.

In connection with the first contention, it appears that the testimony of Marie Long, a girl thirteen years of age, is necessary to sustain the conviction. It was objected to and is presented by proper bill of exception. We have this day passed on the identical question with a full and sufficient discussion, in the case of Santillian v. State, No. 22,773, (Page 554 of this volume), and refer to that opinion for our reason in holding that she was a competent witness.

The second question has its difficulties and is presented in a little different way to any case we find discussed in the former opinions of this court. It is observed from the statement of facts that the prosecutrix first made her statement that another party was responsible for her condition to her mother and to appellant and that when she was first taken to the officers, the prosecution was started immediately because appellant was arrested a short while thereafter. There is no evidence that she made a contradictory statement to an officer or to anyone in position to institute a prosecution. We must then determine whether or not the statement made to appellant and to his wife, who cannot testify against him, is sufficient as an affirmative act to constitute her an accomplice witness under the well recognized rule. The evidence of such statement was admissible as going to her credibility. We are aware of the caution with which the uncorroborated testimony in this character of cases is received, but the rule must apply to all kinds and character of crime and cannot be different in this case to what it is in any other.

We observe that the early decisions of this court held that there must be some affirmative act aiding the accused to escape arrest, or the punishment assessed, or to mislead investigating officers and fasten the crime upon another. Progressively, the rule has been extended until it includes statements similar to those made by the witness in the instant case, if made to a grand jury or to the law enforcement officers in a way calculated to direct them away from a prosecution. Womack v. State, 170 S.W.2d 478. The court has never gone so far, however, as to say that a child who makes a statement to the wife of accused, a person disqualified to testify against him, should be held thereby to be an accessory to the crime after the fact and to become an accomplice witness. There would be much less reasoning in holding that a statement which was made to the accused, himself, would make her such. We cannot come to the conclusion that the rule should be so extended as to include the case now before us. No better example could be found to illustrate the fallacy of such a rule. She was a child twelve years of age when the conduct testified to by her began. That she, through fear, timidity, or misconception of the proper course to pursue, should, by a misleading statement, make herself a party to the crime is too much to sanction in the state of the law as we now find it. Our decisions often admonish the trial courts to receive a case like the one before us with great care and caution. Apparently this was done by the trial court in this case. We have no way of saying that the jury trying the case did not do so.

Finding no error, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.