Martinez v. State , 123 Tex. Crim. 572 ( 1933 )

MORROW, Presiding Judge.

The offense is rape; penalty assessed at confinement in the penitentiary for a period of ten years.

The prosecution is under that phase of article 1183, P. C., 1925, defining rape as carnal knowledge of a female under eighteen years of age, with or without consent and with or without the use of force, threats, or fraud; provided that if the female is fifteen years of age or over, or if consent is shown, proof that the female was not of previous chaste character may be a defense.

The prosecutrix testified that on the night of September 4, 1931, she had sexual intercourse with the appellant; that she had previously had sexual intercourse with him four times; that she never disclosed the conduct of the appellant until she was discovered.

The age of the prosecutrix was declared by her mother to be fourteen years on June 10, 1932. According to the mother of the prosecutrix, appellant offered to give her husband employment if he would refrain from prosecuting him. There was corroborative testimony given by the officers as well as circumstantially by the mother of the prosecutrix.

Appellant was an employee of the Texas Company at Port Arthur, Texas. The superintendent of that company testified that the appellant bore a good reputation; that the mother of the prosecutrix had had preliminary negotiations with reference to effecting a settlement and preventing the prosecution of the appellant; at least such proposals were made to the witness.

A number of witnesses supported the good reputation of the appellant.

The doctor who examined the prosecutrix testified that she exhibited attributes of a mature woman; that she appeared fully developed; and that in his judgment she was about eighteen years of age. She was neither pregnant nor diseased. The examination which he made exhibited no indication of force. There were no lacerations or anything that would indicate force. In a conversation with the doctor, the prosecutrix indicated that she had entered fully into the acts of intercourse with the appellant.

Appellant testified that he was a native of Mexico; that he had frequented the home of the prosecutrix, where he bought beer from her parents, paying them for it at regular prices. He said he would go to the house about 9:30 or 10:00 o’clock at night and that the girls (the prosecutrix and her sister) urged him to stay until after midnight; that he, the mother, and the girls would go out at night to lunches; that the prosecutrix slipped out of the house four times and met him. He had learned from both the father and mother of the prosecutrix that she was over seventeen years of age; that she appeared to be between seventeen and eighteen years of age; that his first act of intercourse with her indicated that it was not her-first act; that the intimacy was started by the conduct and request of the prosecutrix.

Another doctor who examined the girl testified that in his opinion she was between thirteen and fifteen years of age; that she was very fully developed for a child of her age.

Several bills of exception, notably, Nos. 3, 4, and 5, complain of the refusal of the court to receive evidence proffered by the appellant’s witnesses going to show that the prosecutrix, prior to the time of the beginning of the appellant’s illicit relations with her, had been seen by the witnesses to engage in lascivious conduct with men who frequented her mother’s home. Such testimony, in many details, was of a nature to bear upon the want of chastity of the alleged injured female at the time her relations with the appellant began. This testimony, especially in the light of other testimony in the record throwing light upon the character of the prosecutrix and her age, is deemed to have been admissible on the issue presented to the jury as to whether she was of previous chaste character at the time she began her relations with the appellant. The admissibility of circumstantial evidence bearing upon the previous character of the prosecutrix has been sanctioned in many cases. Among them are the following: Norman v. State, 89 Texas Crim. Rep., 330, 230 S. W., 991; Simpson v. State, 93 Texas Crim. Rep., 303; Miller v. State, 98 Texas Crim. Rep., 525. Other references will be found in Shepard’s Texas Citations.

Due to the error committed in rejecting the testimony mentioned, the judgment is reversed and the cause remanded.

Reversed and remanded.