Henard v. State , 47 Tex. Crim. 168 ( 1904 )

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of five years. This is the second appeal, — the former being reported in 79 S.W. Rep., 810.

Appellant reserved a bill of exceptions to the action of the court permitting the State to propound to prosecutrix the following question: "Did the defendant do that to you within one year prior to last November?" To which she answered, "Yes, it was within one year running back from last November." The question was objected to as leading. As presented the question does appear to be leading. However, no issue was made as to the particular date when the case should have occurred, and we can see no injurious result to appellant in permitting the question and answer.

Appellant excepted to the action of the court refusing to permit him to prove by Mrs. Nettie Henard (wife of defendant and sister of Luna Wilson) that her brother Wallace Wilson, during the time she lived with her father, and while Wallace was there and before she married Arthur, that Wallace came into her room at night, as many as, on three occasions, and put his hand on her breast and tried to get in bed with her, and to get her to have intercourse with him. The testimony was excluded on the ground that it appeared to be irrelevant and immaterial, not connected with the transaction on trial and too remote. The bill itself does not show appellant's purpose in desiring its introduction. This should have been done. However, before testimony of this character can be offered, there must be some facts presenting the theory tending to show that a third party committed the offense instead of defendant; that is, some evidence pertinently connecting the third party with the offense charged. The bill should have shown some evidence of this character, which it does not do. If we were permitted to recur to the evidence in the case that would equally fail to suggest the theory connecting Wallace Wilson with the offense charged. Therefore, the court did not err in excluding the testimony.

By another bill of exceptions appellant complains of the action of the court, as follows: "The State called as its first witness, Miss Luna Wilson, and proved by her one and only one act of intercourse between her and defendant, which she said occurred within one year prior to the date of filing the indictment. This witness did not testify to anything that occurred on the time testified to by the witness Maggie Stevens, as shown hereafter by this bill. After this witness had testified, the State called Miss Maggie Stevens, as its next witness before it rested, and she testified, as follows: "I was at Mr. Wilson's house within the last year or so and saw the defendant there. No one was there but him and Luna. That was one or two o'clock in the afternoon. No one was there on the place but he and Lune when I got there. They were in the room the girls slept in and Luna came out on the porch as I came in. When I first got there, Luna met us at the door and I never saw him for about fifteen minutes. Luna was doing nothing when she came to the door, and she never said anything only she said we liked to scared her to death. We scared them by walking up on them. They were scuffling over a bowl after that on that day. She had a bowl and he was trying to take it away from her. I don't remember whether he took it away from her. She was trying to get him to quit and let her alone. This was along about May of last year sometime." After the State rested, the defendant called Miss Luna Wilson, the prosecuting witness, and she testified that the day Miss Stevens was there, was not the day she had intercourse with defendant, as testified to by her in her direct examination. Thereupon defendant filed and presented to the court, the following motion: "Now comes the defendant and moves the court to exclude and withdraw from the consideration of the jury the testimony of Miss Stevens, because the same is incompetent, irrelevant, immaterial and prejudicial, in this: It appears from the evidence of Luna Wilson (the prosecuting witness), that the act of intercourse testified to by her, and for which this defendant is on trial, did not occur on the day testified to by Miss Stevens, and the evidence of Miss Stevens only tends to prove another and different occasion and offense than the one on trial." The court in explaining the bill, says: "After the evidence was all in and the argument had begun, the court on motion of defendant verbally instructed the jury, that the remark testified to by Miss Stevens that Luna made, `You liked to scared us to death,' was not to be considered by them." After this explanation, the motion to exclude the balance of the testimony was overruled. Appellant strongly urges that this was proof of another act of intercourse, or rather that the circumstances tended strongly to show another act of intercourse, and the evidence should have been excluded. If appellant is correct in his contention he is amply supported by Smith v. State, 7 Texas Ct. Rep., 918, and authorities there cited. The State, however, contends that the testimony adduced does not show another act of intercourse constituting a distinct offense, but merely tends to show the familiarity existing between the parties, and that such evidence is admissible as tending to support the prosecutrix, as to the occasion testified about by her. The only Texas case to which we are referred authorizing the introduction of such evidence is Denton v. State, 9 Texas Ct. Rep., 947. There is an expression in that decision suggesting the admissibility of this character of testimony, but the point was not necessary to that decision. As stated above, the rule in this State now is, as laid down in Smith's case, supra; that is, as a general proposition evidence of other acts of intercourse between a defendant and a girl under fifteen years of age, on whom he is alleged to have committed a rape, is not admissible. This rule appears to be based on the danger of admitting evidence of extraneous crimes of like character, because the same would be calculated to unduly influence the jury. While this may be true, it is difficult to differentiate between this character of testimony; that is, acts showing familiarity between the parties, and other rapes. According to Mr. Bishop they only differ in degree. Bishop Stat. Crimes, secs. 680, 682. However, the former cases on this subject admitting other acts of criminal intercourse between the parties have been overruled, and we have adopted a different rule as to such other acts constituting separate rapes. Smith v. State, supra. The recognition of the doctrine that acts showing acquaintanceship and familiarity between the parties is admissible as tending to show likelihood and opportunity to commit the offense, is not in conflict with the cases holding proof of other rapes not admissible.

Appellant earnestly insists that the testimony properly construed shows another rape, if it shows anything. The State eliminated this evidence by showing that no intercourse occurred between the parties on said occasion, and as presented shows merely intimacy between the parties, falling short of another offense. As to the intensity of the proof we have nothing to do, holding as we do, evidence of conduct between the parties indicating familiarity may be adduced in a rape case, when this does not go to the extent of showing another offense.

Appellant further contends that the evidence in this case is not sufficient to sustain the verdict. We cannot agree to this contention. The only issue made on this line is as to the age of the prosecutrix. An examination of the record shows that the age of prosecutrix was testified to by a number of parties, showing that she was under 15 years of age at the time of the commission of the offense; and we think it was amply sufficient to convince the jury that this fact was established beyond any reasonable doubt. The judgment is affirmed.

Affirmed.

Davidson, Presiding Judge, absent.