DocketNumber: No. 1130.
Citation Numbers: 142 S.W. 1172, 64 Tex. Crim. 454
Judges: HARPER, JUDGE.
Filed Date: 1/10/1912
Status: Precedential
Modified Date: 1/13/2023
I agree with my brethren that the judgment should be reversed for the error of the trial court in refusing to grant the continuance asked by appellant. I do not care to discuss it. I think the opinion of the majority is correct upon this proposition.
I desire to enter my dissent, however, to that portion of the opinion which holds there was no error in the refusal of the court to quash the indictment, and failing in that, to sustain the various exceptions of appellant with reference to refusals on the part of the trial court to require the State to elect upon which count the prosecution would be had, also in the admission of testimony in regard to the different transactions set forth in the different counts. The indictment contained five counts charging appellant with rape upon his daughter. The first count charges him with having ravished his daughter about the first of November, 1909; the second on the first of January, 1910; the third on the first of May, 1910; the fourth on the first of July, 1910, and the fifth on the 15th day of August, 1910. When the case was called for trial appellant moved to quash the indictment *Page 460 because it set up five different, distinct and separate felonies. Several objections were urged. This was and is a concrete expression of the reasons for the motion to quash. This was overruled. Appellant excepted. He then filed a motion to require the State to elect, before proceeding with the trial, upon which count the conviction would be asked. This was overruled, and exception reserved. The prosecuting witness was placed upon the stand, and, over objection of appellant, was permitted to testify to an act of intercourse on the part of her father with her supporting each separate count in the indictment. The question was then asked if her father had intercourse with her in November, in January, in May, in July and in August, the dates specified in the different counts. Over the objection of appellant she was permitted to answer in the affirmative in detail each question. Appellant reserved his bills.
Motion was then made by appellant to require the State to elect upon which transaction the State would proceed. This was overruled, and exception was reserved. At the conclusion of the testimony of the prosecuting witness, the court certifies to one of the bills of exception that the State then elected of its own motion to ask conviction on the fifth count, to wit, the act charged to have occurred on the 15th of August, 1910. Where distinct felonies are charged in separate counts in an indictment, shown by and on the face of the counts contained in the indictment to be different transactions, the court should sustain the motion to quash, or in the event he should decline to do this, then he should require the State to elect upon which one of the counts the prosecution should proceed. Appellant sought to have the State to comply with these phases of the law. The court overruled all of his motions. Under our decisions and the authorities this was error. McKenzie v. State,
Again, the motion of appellant to require the State to elect upon the development of the testimony when it was first discovered that more than one act occurred should have been sustained. It was not proper nor legal to develop these five transactions before the jury and then wait until the conclusion of the testimony of the prosecutrix for the State to elect. The facts with reference to all of these different transactions were by this means introduced and placed before the jury. The harmful effect of this is clearly demonstrated by the fact that the jury did not award appellant the minimum punishment, which is five years, but gave him fifteen years in the penitentiary, or ten years in excess of the lowest penalty. It has been held by the decisions of this court as well as by those of the Supreme Court in the history of each court that where different transactions are developed on the trial, even where the indictment contains but *Page 461
one count, it is the duty of the court to require the State to elect upon which transaction the conviction will be asked, especially where appellant has requested such election. Lunn v. State,
I therefore respectfully enter my dissent.