Lloyd v. State

Appellant was convicted of rape on a girl under fifteen years of age and was awarded thirty-five years confinement in the penitentiary.

It is unnecessary to make a detailed statement of the facts. The State beyond any question proved that appellant had intercourse with the girl on several occasions at their rooms in a rooming house in the City of Fort Worth. He had induced the parents of the child, who lived in Dallas, to let him have the girl to train her "for the stage," she having a great desire for that avocation. He took her to Fort Worth for the purpose of training her for the stage, especially singing and dancing. After being in Fort Worth a short time he began sleeping with the girl. There was no contest of the State's case, and there was no issue raised as to the facts and circumstances attending the various acts of intercourse. No objection was interposed to the various times and occasions of their intercourse, nor any question raised, or sought to be raised, as to the previous character of the girl for lewdness or anything of that sort; and in fact the evidence rather tends to exclude that she was lewd and unchaste. She seems to have objected a little the first time they had intercourse, but after that seemed to interpose no objection. On the night of appellant's arrest two officers of the humane or some other society went to his room, and through a key hole or hole made in the door observed the conduct of the two in appellant's room. Her room joined his. She was naked except a cloth around her private parts, and his conduct was lascivious and disgusting in the extreme. What the officers saw through this hole and over the transom, as to his conduct towards her and her conduct, was permitted to go to the jury in detail and at length. Various objections were urged to these indecent acts of familiarity as having no bearing upon the case, irrelevant and prejudicial. It is thought not necessary and not best to repeat the account given of this lascivious conduct. It would serve no purpose, and not necessary to perpetuate in the judicial history of the State. It is contended that this was injurious to appellant. There was no question about the intercourse between them. There was no question of her age. It was not denied that he had intercourse with her, and, therefore, these acts of lascivious conduct and familiarity could tend to prove no issue. We are inclined to believe this contention is correct. Had there been a contest over the fact of his having intercourse with her these might have tended to support the State's case. There was, however, no fact it tended to elucidate, and had a serious bearing adversely to defendant. If error is committed and it would tend to bring about a conviction, when but for such error there might be an opportunity for acquittal, such error would be reversible. Another proposition is that, conceding the guilt of an accused, if testimony erroneously admitted tending to enhance the punishment above the minimum fixed by law, the error would be equally reversible. Just what effect the introduction of this testimony had upon the jury would be difficult to tell, but it is a fact that appellant received thirty-five years in the penitentiary when he might have received less had this testimony been excluded, five years being the minimum punishment. This illegal testimony may have assisted and doubtless did aid in bringing about this heavy punishment. But in any event, we think it was error to admit it, and having been awarded this high punishment, we are of opinion that the error is of such a nature that this judgment ought to be reversed, and it is accordingly so ordered.

The judgment is reversed and the cause remanded.

Reversed and remanded.

PRENDERGAST, JUDGE, dissenting.