Boatwright v. State , 94 Tex. Crim. 87 ( 1923 )

Appellant was convicted in the District Court of Wood County of the offense of rape, and his punishment fixed at five years in the penitentiary.

The indictment follows the form approved in many cases and charges that appellant "did then and there unlawfully ravish and obtain carnal knowledge of Lela Maxfield, a woman, by force, threats and fraud, without her consent." According to the testimony of Mrs. Maxfield, the alleged injured party, appellant came to her house in the absence of any other members of her family and by force and threats and the exhibition and use of a pistol compelled her to submit herself to him, she not consenting thereto. The defensive theory was that the act of intercourse was with the consent of the prosecuting witness, and same was but one in a succession of similar occurrences. A detailed statement of the testimony could serve no useful purpose, and a sufficient statement of the facts will appear in a brief discussion of the points raised on appeal and urged as errors committed upon the trial.

The motion for continuance was properly overruled. Without controversy in any way, the bill of exceptions complaining of this action of the trial court is qualified by the statement that all of the witnesses named in the application for continuance appeared and testified on the trial except the mother of appellant. This witness lived in the county of the trial. She had been subpœnaed as a witness and was not present, but no reason for her absence is stated. Appellant testified he lived with his mother. The testimony attributed to the absent witness was that she would testify if present that appellant owned a pistol, and that on the morning of the alleged assault, and after he had left home to go to the place where said assault, if any, was committed, witness made up the bed occupied by appellant the night before and saw and observed his pistol under the pillow. We do not regard the testimony of such materiality as to demand a reversal of the case upon the proposition that the lower court abused his discretion in overruling the motion for new trial based in part on the refusal of said continuance. The alleged assault was committed at or about noon. A few hours thereafter appellant was arrested and admits that he had a pistol in his possession shortly before said arrest. A disinterested State witness testified that she saw appellant have a pistol in his hand shortly after the time fixed by prosecuting witness as that of said assault. There is nothing in the State's case which attempts to identify the pistol had by appellant at the time of the alleged assault, with any pistol belonging to him, or as one which he had at his house, or in possession of which he had theretofore been seen. We deem it well within the province of the trial court to conclude that had the mother of appellant been present and testified as attributed to her in the application for continuance, the result of the trial would have been unaffected thereby.

The absence of five special veniremen, stated by the trial court in his qualification to the bill of exceptions as resulting from excessive high water and severe rains immediately preceding the date of the trial, did not of necessity call for granting of attachments for said absent veniremen before the selection of a jury could proceed. Ordinarily the issuance of attachments for absent veniremen is proper, but where it is made to appear that the service of such attachments would be impossible or of no avail, because of the absence of such veniremen from the jurisdiction of the court, or the existence of facts which would render it impossible to serve the attachments, or facts which would render it impossible for the veniremen to come if attached, this would seem to take away any vice in the refusal of such attachments. For aught that appears in the bill of exceptions the jury was obtained from the number of veniremen who were present, and no effort is made to show any objectionable jurors was forced upon appellant. In such case we do not deem it error to decline to issue the attachments or to halt the proceedings until the presence of the absent veniremen could be secured. See Secs. 542-543, Branch's Ann. P.C., for authorities in point. A similar situation is discussed in Hughes v. State, opinion delivered October 15, 1922.

It is a well settled rule that testimony of statements made by the prosecutrix immediately following an alleged rape, as evidencing the outcry made by her, is admissible; and this is especially true when her attitude toward the alleged occurrence is challenged and the defense is based upon the proposition of her consent thereto. Appellant's bills of exception Nos. 3, 4 and 5 present his objections to testimony of statements made by the prosecutrix which come within this rule. See Sec. 1784, Branch's Ann. P.C., and Sec. 83 thereof as presenting applicable authorities.

Upon cross-examination of the prosecutrix she was asked a great many questions, the tendency of which, and that of testimony sought to be elicited from her, evidently was to show that her story was a fabrication, and that she in fact was not ravished by force or threats but that she consented to the act of intercourse. Upon redirect examination the State's attorney asked her if there was any part of her testimony as given on direct examination that was not true, he wanted her to point the same out. We do not regard this so violative of the limits of proper interrogation, as to make the error predicated thereupon, serious.

Prosecutrix testified that appellant was under the influence of liquor at the time he entered her home and committed the assault upon her. We can not agree with appellant's contention, in this state of the case, that it was erroneous to permit a witness who rode in a car with appellant after his arrest on the same day, to testify that from the appearance of appellant, his acts and conversation, he was like a drunk man. We deem this no violation of the law inhibiting testimony of confessions or incriminating acts while under arrest and unwarned. This is complained of in appellant's bills of exception Nos. 7 and 8.

The remark of the State's attorney to a witness for defendant, apparently as part of an effort to induce the witness to admit that she had made statements in the county attorney's office contradictory of her testimony as given upon the witness stand, to the effect that the attorney wanted the witness to "come clean now," would not seem to be of injury to the appellant nor a transgression of the rules of procedure such as would call for any reversal.

The statements made by prosecutrix to her step-daughter following the alleged assault and being in substance that appellant had forced her with a gun, were not objectionable. It is made to appear that the statement was made by said witness a few minutes after the occurrence charged against appellant and same would be admissible under either the rule of res gestae or that of speedy outcry. We also deem testimony of the agitated appearance of said witness and that she was crying and seemed worried and troubled, the time referred to being recently after the alleged assault, admissible as rebutting the defensive theory that the assault was with her consent.

Appellant has four bills of exception complaining of testimony introduced by the State showing in substance that a short time prior to the alleged occurrence and prior to the marriage of prosecutrix to her husband, which event occurred about a year before said assault, the prosecutrix bore a good reputation for virtue and chastity. The evidence was pertinent, and the time embraced therein was of such proximity to the time of the alleged rape as to shed light upon the proposition that she did not voluntarily engage in sexual intercourse with appellant at said time. Ballew v. State, 48 Tex.Crim. Rep., 85 S.W. Rep., 1063; Thomas v. State, 36 Tex.Crim. Rep.. There seems no doubt of the fact that when the defense to a rape case is based upon the contention that the act was had with the consent of the prosecutrix, this permits the introduction of testimony of her good reputation for virtue and chastity. Warren v. State,54 Tex. Crim. 443, 114 S.W. Rep., 380; Jacobs v. State,66 Tex. Crim. 146, 146 S.W. Rep. 566.

We think the proposition advanced by appellant's bills of exception Nos. 17 to 22 inclusive, settled adversely to his contention. A witness may not be attacked as to his credibility, by proof of isolated acts of immorality. Mr. Branch cites many authorities in Sec. 168 of his Annotated P.C., which sustain the soundness of this rule.

The State in its cross-examination of a defense witness who had testified to the bad reputation for virtue and chastity, of one of the State witnesses, asked said witness if he knew the general reputation of appellant for truth and veracity. Appellant objected to this question, whereupon same was withdrawn and no answer given thereto. We do not consider the bill complaining of this to present any serious error.

By three bills of exception complaint is made of the court's charge defining force and submitting this as an issue. We set out above the form of the indictment charging a rape by force and threats, and are of opinion that there was no error in submitting the definition of force, or of instructing the jury that if they believed the alleged rape was accomplished by means of force and threats, they should convict.

Appellant's bill of exceptions No. 30 is not approved by the trial court. Same only presents objections to the questions asked appellant while a witness if he had been indicted for other felonies and would in no event present any error.

There is a complaint directed at the court's charge for failure to present the appellant's defense in an affirmative manner. The charge instructed the jury that if they found that the defendant had carnal knowledge of Lela Maxfield, but further found that such carnal knowledge was with her consent, or if they had a reasonable doubt thereof, they should find him not guilty. This we deem sufficient to present the only defensive theory found by us in the record. It would seem idle to us to argue the proposition that the court should have charged the jury that the ravishment was by threats alone, when the prosecutrix testified to the exhibition and use at the time and for the purpose of accomplishing said act, of a pistol by the accused.

Various bills of exception taken to the argument of the State reflect the fact that the prosecuting officer said he would now turn over this outrageous case to the jury, and that at another time he stated that appellant's own testimony that he had intercourse with prosecutrix in the cemetery, branded him as the meanest man in the world, and that at another time said attorney stated, while looking at appellant, that "You ought to be stood." None of these remarks seem to bring the case within the rule forbidding argument which is abusive or which contains inflammatory or prejudicial appeals, or statements of material facts not in testimony; and in our judgment none of said argument would call for a reversal of the case.

The only remaining bill of exceptions is that taken to the refusal of the motion for new trial. Said motion is accompanied by the affidavit of appellant's mother, the effect of which is that if present she would have testified as stated in the application for continuance. We have discussed this and expressed our view of it above.

Finding no error in the record, the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING. March 21, 1923.