Satterwhite v. State , 113 Tex. Crim. 659 ( 1929 )

The State's motion for rehearing makes vigorous attack on our opinion of reversal both for having considered appellant's bill of exceptions No. 1, — which is claimed to be wholly defective, — and also for a departure from the long settled law of this State as deduced from any opinions of this court. It is urged that appellant's bill of exceptions No. 1 is vague, indefinite and multifarious, and that same is an inseparable mixture containing much offered testimony which is inadmissible, with some of doubtful admissibility, and some possibly which might be competent, and that to consider it in this condition would be against practically an unbroken line of authorities in this State. It is also urged that if the bill be considered, its contentions are unsound, and that the announced law of our opinion of reversal is contrary to what may be regarded as the established law of Texas; also that our opinion of reversal is not warranted by the character of testimony rejected by the trial court.

The law applicable in every case must fit the facts of that case. The case before us on its facts shows that a girl of foreign extraction, who worked at night, and who lived with her father, her mother being dead, left her work about ten o'clock with a seventeen year old boy who appears to have been a timid young fellow, if not in fact worthy to be called a weakling; that they went to a restaurant, and while eating were accosted by appellant who insisted on taking them to the girl's home in his coupe, — a project to which the companion of prosecutrix seems to have urged assent. Getting them in his car appellant drove away from the town and into the country, over the protest of prosecutrix, and to a place where she seems to have gotten out, and to have been pursued by him until she got back in the car. At this point efforts seem to have been made by appellant, which were admitted by him to have been unsuccessful, to indulge in familiarity with prosecutrix. He drove them over on the Hearne and Bryan road, during all of which time he seems to have been prosecuting his effort to have prosecutrix submit to him but without success. At some point not far from Hearne he induced the boy to get out of the car, and while out, according to prosecutrix, he had carnal intercourse with her by force and against her will and resistance. Appellant's position is that after having made many and renewed and repeated efforts during the entire ride that at this last point prosecutrix finally consented. It was admitted that appellant was drinking. The boy who was with the prosecutrix testified that he was afraid of appellant; that all of appellant's efforts while he was in the car were repulsed by prosecutrix, and that toward the last prosecutrix appeared to be worn out, weak and limp, that when she got out of the car, after it is claimed the assault was committed, she was crying and sick. This witness testified that he protested and told appellant repeatedly to leave the girl alone. After having had intercourse with the girl appellant brought against one or both of them the charge that they had gotten some of his money. They helped him search for it. This might be considered a ruse on his part to prevent outcry on theirs. The boy testified that the next morning he talked to prosecutrix over the telephone and she asked him what she should do and he told her not to say anything about it until he returned from Houston. Two people who were on the road that night near the place where the assault took place testified to having heard the most agonizing screams and calls for help by some woman and that they saw a woman struggling in a car. The next morning after the occurrence the girl went to a doctor who examined her arm and found it badly bruised. Two or three days later this same physician examined the girl and testified that her privates were bruised and red and showed to have been penetrated. He further testified that from his experience as a physician it was his conclusion that prior to the time of this act said girl was a virgin. He further said her privates were very small. The State introduced three witnesses to whom appellant talked the next day after the alleged rape. One swore that appellant said to him that morning: "I went out with a little girl and had a hell of a time, but I got what I went for." Another said appellant told him that "He went out the night before with a G_d d___ little whore and that he carried her out a piece and didn't have no luck with her, and said the next time he carried her out far enough, and said he had plenty of hell with her but he got it just the same." The third man testified he heard appellant say: "I was out last night with a little old girl and she wouldn't give it to me, so I tore the damned bitch's drawers off and took it away from her."

Keeping these facts before us, we examine bill of exceptions No. 1, first, as to its form, and if thereafter deemed proper, its contentions. That the bill sets out offered testimony in the most general terms much of which would be inadmissible, can not be denied. For instance, it is stated therein appellant desired to ask prosecutrix if she had not gone to dances before she came to live in Bryant accompanied by girls who were common prostitutes and women of easy virtue. The character of associates of prosecutrix in such case is plainly inadmissible. Holsey v. State, 24 Texas Crim. App. 35; Hudson v. State, 41 Tex.Crim. Rep.; Cloninger v. State,237 S.W. 288. It is also stated in said bill that appellant wished to ask prosecutrix if she had not been put off a dance floor for indecent dancing and conduct before coming to Bryan. Testimony of individual acts of misconduct can not be given in evidence to impeach a witness. Hays v. State, 90 Tex. Crim. 360; Branch's Ann. P. C., Sec. 168, and cases cited. The opinion of a floor manager at a dance that the dancing and conduct of prosecutrix justified him in putting her off the floor, would be wholly incompetent.

Other matters about which appellant desired to ask prosecutrix are stated in the same general way, it being stated that some of these things she would admit and some she would deny but which of which is not averred. It is further stated appellant wished to ask her if she had not gone out to "drunken parties" with a half dozen named young men. Manifestly such a question would call for an opinion as to the character of the parties and would be incompetent, but the form of no particular inquiry proposed, is set out in this lengthy bill, no frame or form of any question proposed to be asked being stated.

It also appears in the bill that appellant wished to ask prosecutrix if on each occasion above referred to, i. e. each drunken party, she would not get drunk and hug and kiss the boy she was out with. We do not think such inquiry admissible. It is true Mr. Underhill in his work on Criminal Evidence, 3d Ed., p. 589, says:

"Evidence of drunkenness and dissipation, of the keeping of late hours and of street walking, on the part of prosecutrix will always be received."

We regard such a statement as unfortunate because of its inclusiveness. Mr. Underhill cites only two cases in support of this text, viz.: Cloninger v. State, 91 Tex.Crim. Rep., 237 S.W. Rep. 288, and Brennan v. People, 7 Hun (N.Y.) 171. Both cases have been carefully examined. We find absolutely nothing in the Cloninger case, supra, which supports the quoted text. In that case there was neither proof made nor offered that prosecutrix was drunk, or that she ever drank, or that she was dissipated, or a street walker, or that she kept late hours. That prosecution was for rape under a statute which by its terms relieved the accused from guilt if prosecutrix was not a chaste woman at the time of his connection with her. There was no question of consent vel non in that case. Brennan v. People, supra, on its facts showed a woman asserting that the accused and five other men by force carried her behind a pile of lumber where the accused and four others held her while the sixth man ravished her. The accused offered a witness who would have sworn that after having taken liquor with him in a saloon, this prosecutrix then took him to some lumber yard in which she claimed to have been raped, and there she besought him to have carnal knowledge of her; also another witness who observed prosecutrix sitting near a man on a pile of lumber at the same lumber yard, and that she was exchanging caresses with this man, and presently they disappeared together behind a pile of lumber. The rejection of this testimony was held erroneous on citation of Woods v. People, 55 N.Y. Rep. 515, and People v. Abbott, 19 Wend., 192. We have no doubt of the correctness of the opinion in the Brennan case, supra, but think it not to justify the broad statement made by Mr. Underhill as upon its authority. Nor do we think when considered in the light of the authorities cited as a basis for his conclusion, that the statement of Mr. Underhill can be cited as any authority for the admission of the testimony set out by appellant in the bill now under consideration.

As we understand the rule from all the authorities, none of them go further than to hold that in cases where the accused claims to have had carnal knowledge of the prosecutrix with her consent, that this entitles him to prove facts tending to show that he did have such consent. True, the accused in such case is entitled not only to testify himself to such consent, but he may fortify his testimony and support it by other proof showing such consent, and this other proof may be by circumstances as well as by direct testimony. The question arises, does proof by a witness that he took a young girl, a working girl, if you please, to a party and that she became under the influence of intoxicating liquor, and while in such condition hugged and kissed him, but in no case went further, — tend at all to prove her a street walker or prostitute, or that at another time, with a stranger and while entirely sober, she yielded her person to him? The writer does not think so. On the contrary, when appellant names, as he does in this bill, six young men, each of whom he has present as witnesses, and by each of whom he proposes to prove that he carried this prosecutrix to a party, that she became intoxicated and hugged and kissed him, — but by none of whom does appellant offer to prove that she permitted indecent liberties with her person, or that she had or agreed to have carnal knowledge of anyone of said parties, or that such subject was broached or discussed among them, or between themselves and others so that it might have affected her reputation for chastity, — it would seem that such proof would have more force as showing or tending to show the girl a virtuous woman, and one who would not bestow carnal favors even on her friends, or those who might be her chosen escorts and who were to some extent on terms of intimacy with her. It seems to the writer that the tendency of such proof would be strongly against the influence that alone could have application to the case before us, viz.: that such a girl while wholly sober would meet a stranger and act as he claims this girl acted, that is, struggled and resisted for an hour or more before he finally accomplished his purpose with her consent. The analysis of the proposed testimony might go a step further. The thing sought to be established by the use of such testimony was consent on the part of the prosecutrix to carnal intercourse with him. He offered the above proof. The court below told him, as the bill of exceptions shows, that he would permit testimony showing that the girl had had illicit intercourse with any man, — also evidence that her reputation for chastity was bad, but that he would not allow the witnesses named to give the testimony set out in the bill of exceptions. It is, to say the least, strongly suggestive that if no one of six young men, — all of whom had been to parties with this girl, and all of whom had hugged and kissed her when she was under the influence of intoxicating liquor, — would testify that she had consented to actual or prospective intercourse with him, or that discussion of this or other conduct between these young men or between them and others had in nowise given the girl a bad reputation for chastity, this fact would seem to have much force in justifying the trial court in rejecting the offered testimony. A claim that certain facts would establish tendencies to certain results, would be but empty pretense in the face of the necessary influence that none of a large number of witnesses, all of whom knew and would testify to the tendency facts, — had ever known or heard of the coming about of the supposed result from the existence of such tendency facts. The words "necessary inference" are used because the witnesses were present; the effort to break down this girl was supposedly honest; the court had told the defense they could prove bad reputation for chastity, or acts of intercourse with other men. They do not set up in their bill that they could prove such things by any of them, nor were any of them used to prove acts of intercourse on her part. It seems to the writer that it would be far better to adhere to the long established rules of procedure in Texas in such regard, than fly to speculative ills, we wot not of. Young America in 1929 seems not as adverse to hugging and kissing friends of the opposite sex, as may have once been the case, — but this would hardly justify the legal conclusion that such conduct tends to show lack of chastity. Nor is the fact of one becoming under the influence of strong drink, even if deplorable, to be held in law to involve sexual or other immorality, or even to tend in that direction.

It has been held universally in our courts that in rape cases when consent was an issue, the general bad reputation of prosecutrix for chastity might be shown as having a tendency to weaken the State's claim for non-consent. Many cases are cited at page 1003, Branch's Ann. P. C. Also in rape cases where such proof bears on a material issue, testimony may be competent that the prosecutrix has been carnally known by others than the accused. Illustrating, — such proof is admissible where the woman asserts that the act of the accused caused her pregnancy, it being held that proof that she has been with another man tends to destroy this claim. Branch's Ann. P. C., p. 1003. So when there is proof by the State that the parts of the female show that she has been carnally used, the accused may show that such condition could have resulted from acts with others. Branch's Ann. P. C., p. 1004. So, when prosecutrix testifies that the act with the accused was her first and only act and that it caused her great pain and injury to her health. Stafford v. State, 285 S.W. Rep. 314. So also when there is proof that prosecutrix when upbraided for her intimacy with a certain person, threatens that if there be further talk of it, she will lay it on the defendant who is being prosecuted. Shoemaker v. State, 58 Tex.Crim. Rep.. So when prosecutrix swears that the rape by accused was her first experience, and that it hurt her so she almost fainted. Bigliben v. State, 68 Tex.Crim. Rep.. These cases were probably had in mind, when the trial court offered to allow proof of acts of intercourse with any man. They are the exceptions to the general rule obtaining in this State from the beginning, to the effect that testimony of particular instances of intercourse by prosecutrix with others, will not be admitted. Dorsey v. State, 1 Texas Crim. App. 33; Mayo v. State, 7 Texas Crim. App. 349; Lawson v. State, 17 Texas Crim. App. 302; Price v. State, 44 Tex.Crim. Rep.; Knowles v. State, 44 Tex.Crim. Rep.; Clardy v. State, 147 S.W. 568; Wood v. State, 80 Tex.Crim. Rep.. In passing we note that in the case last mentioned the court below excluded the testimony of a witness for the defense who swore that he hugged and kissed prosecutrix, and this court upheld said action of the trial court and cited Kearse v. State, 88 S.W. Rep. 364, wherein the court below refused to allow a defense witness to swear that prosecutrix kissed him, this court observing that from such proof it would not follow that she would allow another man to kiss her.

This brings us to another view of this case. Prosecutrix swore the rape was by force and against her consent. Her escort, the seventeen year old boy above referred to, says that the rape was by force; that she resisted till weak and limp, and that she was sick, and called for help, etc. Appellant himself told parties the next day that he tore her clothes and took it away from her. Other persons heard her agonizing screams and saw her scuffle to get out of the car. The very next day bruises were observed on the arms of prosecutrix, and two or three days later her privates were examined and found to be bruised and inflamed, and the opinion was expressed by the examining physician that this was her first act of intercourse, and that her privates appeared very small. In Wilson v. State, 17 Texas Crim. App. 525, Judge White, for this court, speaking of newly discovered testimony affecting the female's reputation for chastity, said:

"No amount of evidence as to the prosecutrix's want of chastity should overcome proof of the fact that she was ravished by force, as shown by the violence or marks of violence upon her neck and other portions of her person, and her condition, mental and physical, immediately after the occurrence, as testified to by the witnesses."

The substance of this announcement has strong application in this case. It would seem idle that the admission of testimony claimed by the accused to have a tendency to affect the reputation of this girl, and to have a tendency to show that she consented, should be given any weight in the face of facts such as are above set out. This is especially true in view of the fact that the defense produced a witness who testified to substantially the same facts, without objection, which appear attributed to the witnesses whose testimony was rejected and complaint made thereof in bill of exceptions No. 1.

Nolan v. State, 48 Tex.Crim. Rep., is referred to in our former opinion of reversal. The opinion in that case bristles with trial errors, and without setting same out in any sort of detail further, said opinion states that the record contained various bills with reference to the refusal of the court to permit appellant to prove acts of prosecutrix subsequent to the alleged seduction going to show illicit relations and lascivious conduct with other parties than defendant. We do not know what the bills in that case contained, but the case of Davis v. State, 36 Tex. Crim. 548, is cited in support of the above holding, and reference to that case reveals that in it the defense wished to prove by three men that the alleged seduced female had had carnal knowledge of each of them, which testimony was held relevant and we think properly so. No case has value as a precedent or as authority for a given holding unless we can know the point raised, the facts relative thereto, and the principle involved. The Nolan case, supra, might be authority for allowing proof of illicit relations, i. e. carnal intercourse, — had by prosecutrix with another or others, but not as authority for holding it proper to prove that the prosecutrix in this case had been hugged and kissed by young men friends. We think to call such conduct lewd or lascivious a serious error in legal conclusion.

Said bill further states that all witnesses named would testify on each occasion of the parties referred to, prosecutrix would become intoxicated, fondle the men and the men fondle her. Such statements are wholly indefinite. We do not know what legal significance attaches to the word "fondle." Mr. Webster attaches no criminal meaning to a word which he defines as to handle tenderly. This statement in the bill could be taken to mean no more than that these witnesses would each testify to the matters more specifically elsewhere attributed to them in the bill. This but further illustrates the objectionable character of this bill which sets out many things as desired to be proved which appear wholly inadmissible and commingled with others of doubtful competence, and some which might be admissible. Hundreds of cases might be cited holding that a bill in this condition should not be considered. Payton v. State, 35 Tex.Crim. Rep.; Tubb v. State,55 Tex. Crim. 623; Cabral v. State, 57 Tex.Crim. Rep., are mentioned. We are of opinion upon more mature consideration that bill of exceptions No. 1 should not have been considered, and that the rules in this State regarding the admission of testimony in rape cases are too well settled and understood to be infringed upon or changed. The cases above referred to as allowing proof of intercourse with others seem to fairly lay down the correct rules in that regard.

We are of opinion that this case was properly decided in the original opinion. The State's motion for rehearing will be granted, the judgment of reversal will be set aside, the appellant's motion for a rehearing as originally filed will be overruled, and the judgment affirmed.

State's motion granted and judgment affirmed.