Bohannon v. State

The majority opinion herein holding that the lower court was wrong in submitting to the jury the question of whether or not the complaining witness, Mrs. Sutton, the daughter of appellant, was an accomplice, and in holding that the court should have taken the question away from the jury and peremptorily instructed that she was an accomplice, is clearly wrong. The former holding of this court in numerous cases, and down to the present time, has been the reverse of the holding of the majority in this case.

Mrs. Sutton, appellant's own daughter, testified that he had sexual intercourse with her in July, 1915, the date was fixed at about July 8th. She testified: "Before my father had sexual intercourse with me in July, 1915, he had made threats to me; I hate to tell it, but he never has been a father to me; he taken a knife and split down my dress because I wouldn't give up to him, then he taken his gun one time to kill me; I knew he meant to kill me. At the time I testified about I went in his room in July, I did that bcause I was afraid of him, that is the reason I went to his bed every time. When I went to his bed he had intercourse with me just as though I was his wife, forced me to."

In Zollicoffer v. State, 16 Texas Crim. App., 317, one Green, as is stated, was "unquestionably an accomplice"; he was indicted for the same offense and turned State's evidence in order to avoid being prosecuted himself. The court in that case, under that state of fact, submitted the question to the jury to decide whether he was an accomplice and if he was he had to be corroborated. The appellant therein contended that that charge was error and that the court should have expressly told the jury that he was an accomplice and had to be corroborated. The court held: "It is insisted by appellant that the court erred in submitting to the jury the question as to whether or not the witness Green was an accomplice; that the court should have directly charged the jury that he was an accomplice the evidence being so conclusive of that fact. Whilst it would not, under some facts, be improper for the court in its charge to assume, and to instruct the jury that a witness is an accomplice (Williams v. State, 42 Tex. 368 [42 Tex. 368]; Barrera v. State, id., 260), still we do not think it is error to submit the question to the jury. It has been the practice in such cases to submit this issue to the jury, and, believing the practice to be a safe and proper one, and in harmony with the spirit of our system of procedure, we are not disposed to change it."

In Williams v. State, 33 Tex.Crim. Rep., it was complained that the court in that case erred in not instructing the jury that Mrs. Humphreys was an accomplice. The court said that "if the criminal connection with the unlawful act is an admitted fact, the court may charge that the party so connected is an accomplice, and should be corroborated. If, however, there is any question about it, then it should be left to the jury to say whether the witness is an accomplice." The court therein referred to quoted from and approved the holding in the Zollicoffer case, supra, and cited other cases to the same effect.

In Armstrong v. State, 33 Tex.Crim. Rep., Judge Hurt held: "If there be an issue raised by the evidence whether a witness be an accomplice or not, in such a case the court should leave the issue to be decided by the jury under proper instructions." To exactly the same effect are the cases of White v. State, 30 Texas Crim. App., 652; Elizando v. State,31 Tex. Crim. 237; Freeman v. State, 11 Texas Crim. App., 92; Rios v. State, 48 S.W. Rep., 505; McGrew v. State, 31 Tex. Crim. 336; Lockhart v. State, 29 Texas Crim. App., 35; Hankins v. State, 47 S.W. Rep., 992; Martin v. State, 38 Tex. Crim. 462.

In Creech v. State, 70 Tex.Crim. Rep., this court in discussing said question, held that where there was no doubt and the proof was certain that any witness was an accomplice the court should so tell the jury, and held: "But even where that is the case, as said by Judge White in section 1000 in his Criminal Procedure, ``Where a charge on accomplice testimony announces the rule with regard to such testimony, as provided in approved forms which are well established, it is sufficient, though the jury are not told in so many words, that any particular witness who has testified in the case is an accomplice. McGrew v. State,31 Tex. Crim. 336; Lockhart v. State, 29 Texas Crim. App., 35; Hankins v. State, 47 S.W. Rep., 992; Martin v. State,38 Tex. Crim. 462.' So Mr. Branch in his Criminal Law, section 320, page 183, says: ``It is not error to leave it to the jury to say whether a witness is an accomplice, though such fact be apparent. Dill v. State, 28 S.W. Rep., 950; Carroll v. State, 62 S.W. Rep., 1061; Ransom v. State, 49 S.W. Rep., 582; Zollicoffer v. State, 16 Texas Crim. App., 312; Hankins v. State, 47 S.W. Rep., 992.'" Other decisions even later could be cited holding the same thing but it is unnecessary.

Judge White in his Ann. C.C.P., sec. 992, sub. 5, lays down unquestionably the true principle in this matter, saying: "In incest, where the evidence tends strongly to show that the female knowingly, voluntarily, and with the same intent which actuated the defendant, united with him in the commission of the offense, she is an accomplice. On the other hand, if she was the victim of force, threats or fraud, or undue influence, so that she did not act voluntarily, nor join in the commission of the act with the same intent that actuated the accused, she is not an accomplice. Mercer v. State, 17 Texas Crim. App., 452; Stewart v. State, 35 Tex. Crim. 174; Tipton v. State, 30 Texas Crim. App., 530; Schoenfeldt v. State, 30 Texas Crim. App., 695; Blanchette v. State, 29 Texas Crim. App., 46; Dodson v. State, 24 Texas Crim. App., 514; Freeman v. State, 11 Texas Crim. App., 92. See Jones v. State, 23 Texas Crim. App., 501."

The statute just as plainly and clearly makes it incest of the daughter to have sexual intercourse with her father as of the father to have intercourse with the daughter. In other words, if the act is voluntary and with the same intent committed by the father and daughter the daughter is a principal precisely the same as the father and she could be indicted, prosecuted and convicted of incest under those circumstances just as well as her father could be. P.C., arts. 486 and 488. Suppose in this instance this daughter of appellant, Mrs. Sutton, had been indicted for incest instead of her father, or in addition to her father, and she had been on trial and had testified exactly the same in her own case as she testified in this case against her father, there can be no sort of doubt that the lower court under such circumstances could not legally have charged that from her testimony alone she was guilty of incest with her father and require the jury to convict her. This court, and every member of it, under such circumstances, upon proper objections by her to such charge, would unquestionably hold it was reversible error for the court to so charge. If the court in that instance would have no right to take the question away from the jury and to peremptorily instruct the jury that she was guilty of incest and to so convict her, neither can the court when the father was on trial take the question away from the jury and tell them she was guilty of incest, which the court by the opinion herein, if it prevails, will actually do.

Appellant's bill objecting to what he claims was leading questions to Mrs. Sutton, is wholly insufficient under all of the decisions of this court. In section 159, 1 Branch's Ann. P.C., he lays down a correct proposition and cites many cases of this court so holding, towit: "A bill of exceptions taken because of leading questions must affirmatively exclude any idea that under the peculiar circumstances of the particular case the court was justified in permitting the State to ask leading questions and if it does not do so no error is shown."

And on page 90 he lays down this further correct principle, citing many authorities of this court so holding, towit: "Permitting a leading question improperly will not be reversible error in the absence of a showing of prejudice thereby." Cases by the score decided by this court in addition to those cited by Mr. Branch could be collated. Both these propositions are unquestionably the law of this State, or at least have been up to now, and should be adhered to. They are both particularly applicable to the bill and to the questions in this case. No case, and particularly this one, should be reversed because a leading question is asked. To do so, in my opinion, is inexcusable. It is to ignore and abandon the real substance, and wrongfully go off after a mere imaginary shadow.

The testimony of the two sisters, which was all of the testimony in this case, wherein Mrs. Sutton says that the appellant called her to his bed at said time, and had intercourse with her — "forced her to," and the testimony of her sister, Miss Bohannon, to the effect, even as stated by the prevailing opinion herein, unquestionably referred to the same transaction and no other. So that if the jury had even decided under the correct charge given to them by the court that Mrs. Sutton was an accomplice of her father, then undoubtedly she was corroborated by her sister in the testimony she gave. The testimony of the two sisters did not refer, and could not reasonably be construed to refer, to different transactions but to the same identical transaction.

This case was undoubtedly tried without any reversible error having been committed. The proof is absolutely convincing and true that appellant had sexual intercourse with his daughter on the occasion she testified he did, and she was fully and completely corroborated by her sister, Miss Bohannon as shown. This case should not be reversed but should be affirmed.