Dyer v. State

BERRY, J.

The appellant was convicted in the district court of Franklin county for the offense of rape, and his punishment assessed at confinement in the penitentiary for' a term of 30 years.

The indictment charges the appellant did ravish and have carnal knowledge of one Ouida Elliott, a female then and there under the age of 18 years and not being the wife of the said appellant. Appellant by the first complaint in his brief makes the proposition that as the indictment charges the appellant with the offense of rape by force and the evidence introduced by the state shows that the carnal knowledge 'of the prosecutrix was obtained by her consent, the rendition of the judgment of conviction is unsupported by the evidence. It is appellant’s contention that as the indictment uses the word “ravish,” it means nothing more nor less than that it charges the carnal knowledge of the woman to have been obtained by force and against her consent. The exact question here presented has been decided by this court in an opinion by Judge Davidson contrary to appellant’s contention herein. Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476.

By proper bill of exceptions, appellant complains at the court’s action in permitting the state to prove that the prosecutrix was under 15 years of age, it being appellant’s theory that under the allegations in the indictment the state had served notice upon the defendant that it would seek to prosecute the defendant for having carnal knowledge of a female .under the age of 18 years and over the age of 15 years, and the defendant-would not be precluded from introducing evidence showing that the prosecutrix was of previous unchaste character. We cannot agree with appellant’s contention in this matter. As stated by Judge Lattimore in the case of Simpson v. State, 93 Tex. Cr. R. 303, 247 S. W. 548:

“We are of opinion that the language of the 1918 amendment to the statute charging rape upon a female under the age of consent (chapter 50, Acts Fourth Galled Session, Thirty-Fifth Legislature [Vernon’s Ann. Pen. Code Supp. 1922, art. 1063]) makes it apparent that the burden of showing that the alleged injured female was of previous unchaste character, is on the accused, and that this is a matter purely of defense.” '

This burden is discharged, however, when the evidence raises a reasonable doubt as to previous chaste character of the alleged injured female. That act of the Legislature did not otherwise affect the statute as it had heretofore existed than to permit the accused to show, if he could in a case of this character, that the prosecutrix was more than 15 years of age at .the time of the commission of the offense and that she is of unchaste character, and if these two facts are shown by the accused, then they are sufficient to exonerate him. In our opinion, the Legislature did not intend to otherwise disturb or modify the statute with reference to rape of a female under the age of consent. In other words, we hold that it was not the purpose of the Legislature in raising the age of consent to 18 years to require the state to do any more in preparing an indictment than to charge that prosecutrix at the time of the alleged offense was less than 18 years of age, and, if it should ■ develop from the facts that she was under 18 but over 15 and • was of unchaste character then appellant would have the right to show this as a complete defense against the charge for which he was being tried. It occurs to .us that it is always relevant and material to prove the exact age of the prosecutrix. This is not only pertinent in enabling the state to make its 'case, but it may be material on the question of punishment. It could hardly be said that a jury would be likely, to mete out to an accused the same measure of punishment for having intercourse with a mature female only one day less than 18 years of age than it would inflict on a party having intercourse with an immature child.

By proper bills of exception, appellant complains at the court’s action in permitting the prosecutrix to testify, after she had testified that the appellant had intercourse with her on the night of November 25, 1921, same being the act for which he was on'trial, that he also had intercourse with her in the month of July, 1921. Various objections were urged by appellant to the introduction of this testimony of ánother act of intercourse. Among them were objections to the effect that the introduction of former acts were separate and distinct offenses, were extraneous crimes, and were prejudicial to the rights of the defendant. The court qualifies this bill by stating:

“The state in making out its case in chief simply introduced the prosecutrix, and proved an act of intercourse which she testified to as having taken place between her and the defendant at his house on the night of November 25, 1921. On cross-examination the witness testified that on the night of the 25th of November, 1921, that she stayed all night with the defendant and his wife at their home in the Lake View community in Franklin county; that she slept in a room next to defendant and his wife, between which two rooms was a very thin partition wall with large cracks in it; that about midnight of the night and after she, the defendant, and his wife had gone to bed and had been in bed some time, the defendant came to her room, opened the door in the partition wall, which made a loud noise in opening it, and. without saying a word proceeded to have intercourse with her in his own house after leaving the bed of his wife in an adjoining room; that during the act of intercourse there was nothing at all said between her and 'defendant, but when he had accomplished his purpose he returned to his room; that he said nothing to her when he came to the bed, in fact there was nothing said, so she testified, between them from the time he came into the room until he left. The defendant further on cross-examination asked her if she had not stated upon a former trial of the case that after the defendant had had intercourse with her, he said, ‘Don’t tell whose baby it is, if you have a baby,’ and that this was all that was said between them. She said she had no recollection of such testimony, and neither admitted it nor denied it. Thereupon the defendant read in evidence extracts of her testimony on the former trial wherein she had in fact /testified as follows: ‘Yes, sir; he said, “Don’t tell whose baby it is if you have a baby.” That is all that he said.’

“After the cross-examination of defendant, the state rested, and the defendant put on his evidence in which he testified and denied any act of intercourse at all with the prosecutrix and testified that he was in Red River county with his wife and father and mother on the night of November 25', 1921 and was not in Franklin county at all during that night. He was corroborated by the evidence of his father, mother, and several other witnesses.’.’

The court further states that he admitted this testimony on behalf of the state in its rebuttal evidence after the defendant had introduced all his evidence as above stated. This testimony was clearly admissible as shedding light on the transaction under investigation. It has been held by this court in many cases that, in the trial of a case of this character, it is proper to receive testimony 'of other acts of intercourse when such testimony tends to solve some controverted issue. It occurs' to us that there could he no question but what this testimony of a prior' act would tend very strongly to explain the conduct of the appellant on the night of. November 25,' 1921, in going to the bed of the prosecutrix and without in any manner talking to her engaging in an act of intercourse with her. In fact, we think it not too much to say that, unless there had been prior acts of intercourse shown between them this testimony of the prosecutrix as to what took place on the night of November 25, 1921, might be incredible. The question has been clearly decided against the appellant’s contention by m^ny recent cases from this court, among which we cite the following: Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905; Rosamond v. State, 97 Tex. Cr. R. 569, 263 S. W. 297; Id., 94 Tex. Cr. R. 8, 249 S. W. 468; Greer v. State, 87 Tex. Cr. R. 432, 222 S. W. 986.

Appellant’s complaint with reference to the court giving the definition of “rape” to the effect that it is carnal knowledge of a female under the age "of 18 years other than the wife of the accused, with or without consent and with or without the use of force, threats, or fraud, is overruled. If there was any error in' this definition of rape, it wag certainly in no wise harmful to the appellant.

By bill of exceptions No. 6, appellant complains at the action of the court in failing to charge the jury that appellant should be acquitted if they found that he had sexual intercourse with prosecutrix prior to the •night of November 25, 1921; it being appellant’s view that such prior act would render prosecutrix unchaste. Appellant’s contention would be correct if prosecutrix had been over the age of 15 years on the night of November 25, 1921, but as the undisputed testimony shows that she was less than 15 years of age .at that time,’ then appellant’s contention must be overruled; and this conclusion also disposes of appellant’s complaint at the court’s action in refusihg to give his special charge instructing the jury to acquit the defendant if they should find that the defendant himself, or any other person, had had carnal knowledge of the prosecutrix prior to November 25, 1921.

Appellant also complains by proper bill of exceptions that the jury which convicted the defendant received information from other parties than the witnesses in the case, to the effect that defendant had been convicted in this case by a jury at a former term of this court and his penalty assessed at 25 years in the penitentiary. On this question, the court heard evidence of the jurors trying the case, and the testimony thus heard is properly preserved by bill of' exceptions. If it be conceded that the testimony of the jurors offered by the appellant on his motion for a new trial raised the issue presented in the above complaint, then we think it beyond dispute that the question was a clearly controverted issue as is shown by all of the testimony introduced on the motion for a new trial. In other words, the issue was sharply drawn, and under this state of the record, it has always been the holding of this court that the ruling of the trial court will not be disturbed unless it shows a clear abuse of his discretion. We are unable to say that the record in this case shows that the court’s ruling on the motion for a new trial was not correct, and appellant’s complaint with reference thereto is therefore overruled.

Without discussing the evidence introduced on the motion for a change of venue, we deem it sufficient to say that in our opinion it was exceedingly and hopelessly conflicting, and the court did not err in refusing to grant the same. >

Finding no error in this record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.