Smith v. State

DAVIDSON, P. J.

(dissenting). 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. 1 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 1st of November, 1909; the second, on the 1st of January, 1910; the third, on the 1st of May, 1910; the fourth, on the 1st 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, 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 hád 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 iii 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 day 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 indietnient 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, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795. The rule laid down in the McKenzie Case seems to be the one generally followed; at'least, it is so in this state. This is in accordance with the rule laid down by Mr. Bishop, as well as by the courts generally. See Cyc. vol. 22, p.-.

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 5 years, but gave him 15 years in the penitentiary, or 10 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 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, 44 Tex. 85; Fisher v. State, 33 Tex. 792. These two cases have been followed by all the cases on this question since their rendition. In regard to rape, this very question was decided by this court in Batchelor v. State, 41 Tex. Cr. R. 501, 55 S. W. 491, 96 Am. St. Rep. 791; Williams v. State, 44 Tex. Cr. R. 316, 70 S. W. 957; Powell v. State, 47 Tex. Cr. R. 155, 82 S. W. 516, 122 Am. St. Rep. 683; Stone v. State, 45 Tex. Or. R. 91, 73 S. W. 956, approved in Gelber v. State, 56 Tex. Cr. R. 460 at page 464, 120 S. W. 863; Bader v. State, 57 Tex. Cr. R. 293, 122 S. W. 555; Stone v. State, 45 Tex. Cr. R. 91, 73 S. W. 956. Had there been but one count in the indictment, the state would not have been permitted to develop the five transactions elicited from the prosecutrix. It would have been reversible error, even under that condition of the record; but that error is intensely magnified under the indictment and the conditions found in this record. Here we have five different and distinct offenses alleged, occurring at different times and dates, and at considerable intervals, and each one goes, before the jury over proper protest.

The rule laid down in the eases cited has been plainly disregarded by the trial court and by this court in overruling appellant’s, contentions in regard to the.use of the independent offenses against him. The Constitution and our statute guarantees to a party on trial for his-life or liberty a fair trial, and on the facts of a particular transaction. The state will not be permitted to condense into one indictment various and sundry transactions, covering different periods of time and different and distinct offenses, in order to get the facts in regard to the other transactions before the' jury, and then when this is done to require the state to elect upon which transaction she will proceed, ' after proving all of them. This evidence was not even withdrawn from the jury. After the testimony of the prosecuting witness was heard, the court certifies that the prosecuting attorney, of his own volition, elected the last count as a predicate for conviction, thus leaving all prior facts in evidence before the jury, and by this election it was sought to and did, cut off the defendant from meeting, as best he could, by testimony showing the prior transactions to be false. If there could be a grosser matter of injustice and unfairness, it would exhaust human ingenuity to discover it. One of the absurd phases of injustice, if it was not for the seriousness of it, is found in the fact that all of the prior transactions were elicited before the jury, and the defendant, by the election of the state, was cut off from meeting these prior transactions by counter evidence. Not only so, it permits the state to review all of these prior transactions and the derelictions for months, get the facts before the jury, and permit them to remain, which calls upon the defendant to meet those transactiqns with testimony, and, after the state has ransacked these derelictions coming within the period of limitation, to select that which is thought by the prosecution to be the strongest, and this without permitting the defendant to rebut these matters. If this rule, inaugurated by my Brethren in this decision, applies to the crime of rape, there would seem to be no just reason why it could not be made to apply to any and all other derelictions of the law, especially so where the parties are the same. It was so held in a theft case decided quite recently. See Gowans v. State, 143 S. W.-.^† It was necessary in the Battles Case, decided by this court recently, for the majority of this court to overrule all the decisions ever rendered in Texas on this question, and inaugurate a new line of jurisprudence plainly in violation of the Constitution and the language of the statutes. This is more than an unjust proposition, and is the basis for downright, palpable injustice. It would seem in the Battles Case that my Brethren, in order to justify the introduction of these sundry and divers acts of intercourse, where the girl was under 15 years of age, held that the statute of rape on girls under 15 was practically the same and synonymous with fornication. 1 do not care to pursue the matter further, because the incongruities and absurdities in the Battles Case and in this ca.se will manifest themselves to the thoughtful profession.

I therefore respectfully enter my dissent.

† Rehearing pending.