White v. State , 137 Tex. Crim. 481 ( 1939 )

The State, by the District Attorney in and for the 31st Judicial District of Texas, has filed a concise motion for a rehearing in which he seriously contends that we erred in our original opinion in holding that the little booklet found in appellant's pocket when arrested soon after the commission of the alleged offense was not admissible as evidence against him. Neither the booklet nor the drawings or printed matter therein was appellant's production, and should not have been used in evidence against him on his trial for an assault to rape. A person can only be bound by his own acts and conduct and not that of another. Although he had the obscene booklet in his possession when arrested, it would not be evidence of a criminal intent. It might be that it would tend to show sexual desire, but not necessarily that he intended to engage therein in violation of the law. Sexual desire is embodied in every normal creature intended by God to reproduce, and man is no exception to the rule. This is a well known fact, whether he exhibits it by a booklet or keeps it concealed within his bosom. But it does not follow that by reason of the possession of a booklet depicting scenes which are demoralizing, that such possession would tend to show a criminal intent to violate the law of God and man.

We have carefully considered the case of Warren v. State,259 S.W. 575, which the State contends supports its position. In that case appellant was convicted of an assault with intent to rape a white lady. The defendant, a negro, interposed a plea of insanity. There was considerable testimony offered, bearing on his state of mind. One witness testified that about a year or more prior to the commission of the offense, he and appellant were at work; that a white lady passed and appellant remarked: "Don't the way women folks dress these days tempt you? It does me."

This testimony was admitted by the trial court over the objection of appellant and this court, speaking through Judge Morrow, said: "These remarks were somewhat remote but were not improperly received as bearing upon the intent of appellant and the state of his mind."

We do not regard this holding as being contrary to our holding in this case as expressed in the original opinion. In the first place, white women in this part of the United States do not willingly submit to sexual intercourse with negroes, whatever may be their conduct in other parts, and when a negro expresses a desire for sexual intercourse with a white woman, it leads to the conclusion that he entertains a criminal intent, only awaiting an opportunity for the intended assault. In the second place, the testimony in Warren's Case was admissible as bearing on the soundness of appellant's mind. However, we think that the rule announced in the Warren Case relative to the admissibility of evidence went just as far as it might reasonably have gone, and we have no disposition to extend it any further. Nor do we think that the case of Adams v. State, 252 S.W. 797 supports the State's contention.

Believing the case was properly disposed of in our original opinion, the motion for a rehearing is overruled.

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.