Ables v. State

The appellant was convicted of rape in the District Court of Hunt County, and his punishment assessed at twenty years in the penitentiary.

The indictment charged the appellant with unlawfully having carnal knowledge of Ava Coomer, she being under the age of 18 years. Briefly stated, the record shows that the appellant, the prosecutrix, Jesse Hodges and Sadie Steger, about the 16th day of January, 1926, went in appellant's car from Quinlan, in Hunt County, to the town of Greenville, where they secured rooms for the night; and that the appellant and prosecutrix slept in the same bed in one room, while Hodges and Sadie Steger occupied another room. The undisputed testimony shows that the appellant was a married man about 37 years of age and that the prosecutrix at said time was about 16 years of age. The appellant admitted having intercourse with the prosecutrix, and it was not controverted but that same was with her consent. The appellant attempted to prove that the prosecutrix was of previous unchaste character by showing her familiarity with other boys, in permitting them to hug and kiss her, and he testified in addition thereto that she and Sadie Steger, before retiring on the night of the alleged offense, told him and Hodges of previous acts of intercourse with other boys, which was denied by the prosecutrix and Sadie Steger.

The record contains five bills of exception. In bill of exception No. 1 the appellant complains of the action of the court in permitting the state to show by the prosecutrix that on the night in question the appellant had more than one act of intercourse with her, the appellant contending that this amounted to proof of other and extraneous offenses on his part. The bill was approved, and accepted by the appellant, with the qualification that all the subsequent acts of intercourse were at the same place and on the same night, as shown by the statement of facts. The record discloses that the prosecutrix admitted that she slept with the appellant that night, and testified that the appellant made two unsuccessful attempts to have intercourse with her before succeeding on the third attempt. After a careful examination of this bill and the record, we are unable to reach the conclusion that the testimony of the prosecutrix as to the appellant's attempts to have intercourse with her, and having intercourse with her thereafter, was of such a harmful nature as to require a reversal of this case, especially in view of the fact that all of said acts and attempted acts took place during the same night and in the same bed.

In bill of exception No. 2 complaint is made to the action of the court in permitting the witness, John Knighton, to testify that on the night of the commission of the alleged offense the wife of the appellant and his two children spent the night in the home of the witness, and that the appellant was not there during said night. The appellant contends that said testimony was prejudicial in that it showed the appellant to be a married man with a family. We are of the opinion that the admission of this testimony was not of such a harmful or prejudicial nature as to require a reversal of the case, for the reason that the state's witnesses, Mrs. Nellie Coomer, the prosecutrix and Miss Sadie Steger, had testified, without objection from the appellant, relative to the appellant's wife and family, and in addition the appellant, on his examination in chief, testified that he had been married about fifteen years and had a wife and two children. Under this state of the record, we fail to see how the testimony of the witness, Knighton, could have had such harmful effect as to prejudice the jury materially against the appellant in this instance.

In bill of exception No. 3 the appellant complains of the action of the court in permitting the state, on cross-examination, to prove by him "that it was a fact that prior to the commission of the alleged offense that he had drunk what was known as 'force'; that he had drank it a good many times and had bought it to drink; that he had used it as a substitute for whiskey when he could not get whiskey, and that 'force' was intoxicating, had the same effect as whiskey, and that he had received and transported it as an intoxicating liquor for beverage purposes." The appellant contends that this testimony was highly prejudicial, and was an attempt to show the commission of other and extraneous offenses not connected with the offense for which he was on trial. This bill, as presented, shows no error. The appellant, on his examination in chief, testified to having about a pint bottle of "force" while on the trip from Quinlan to Greenville and admitted drinking some of it himself and passing it to Jesse Hodges on the back seat. The prosecutrix and Sadie Steger also testified to drinking some of the "force" on said trip and to feeling the effects thereof, all of which was without objection. The appellant also having testified to matters which were contradictory to statements made by the girls, we think it was permissible for the state to show on cross-examination, if it could, the effect of said "force" on the appellant's mind, in order to throw the proper light upon his mental condition and the weight to be given to his testimony. That much of the testimony was clearly admissible. Lewis v. State, 33 Tex. Crim. 618. A portion of the testimony objected to in the bill being clearly admissible, and the objection urged in the bill going to all of said evidence generally and not to any specific part thereof, the same is in contravention of the holding of this court in such matters and, as presented, shows no error. Clark v. State, 237 S.W. 260; Espalin v. State, 237 S.W. 274; Scoggin v. State, 273 S.W. 575; Nugent v. State, 273 S.W. 598.

In bills 4 and 5 complaint is made to the court's charge because, it is contended, same placed an undue burden upon the appellant to show that the prosecutrix was of unchaste character at the time of the alleged offense. As we understand this objection, the complaint urged to said charge is, in its last analysis, to the use by the court of the words "unchaste character" instead of "chaste character." Taking the charge as a whole, we do not think the misuse of the word "unchaste" was calculated to mislead the jury and was of such harmful character as to require this court to reverse the case, and under Art. 666, C. C. P., we overrule appellant's contention.

The court failed to apply the indeterminate sentence law in this case. Under Art. 847, C. C. P., said sentence is here and now reformed and corrected to read not less than five nor more than twenty years in the penitentiary, instead of being for twenty years.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court, as reformed, should be affirmed, and it is accordingly so ordered.

Affirmed.

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.

ON MOTION FOR REHEARING.