Oxsheer v. State , 38 Tex. Crim. 499 ( 1897 )

Appellant was convicted of an assault with intent to rape, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.

The court properly overruled the appellant's motion to quash the indictment. It charges an assault with intent to rape, and the fact that it closed with the expression, "by then and there, without the consent of the said Mrs. Annie Lloyd, attempting, by force, threats, and fraud, to have carnal knowledge of her, the said Mrs. Annie Lloyd," does not make it duplicitous.

The court did not err in admitting the testimony of Mrs. Lloyd, the prosecutrix, to the effect that she thought appellant was working on the fence. In that connection she stated, according to the explanation of the bill by the court, that appellant was stooping down, as though at work on the fence. Nor was there any error in the court's permitting the witness Ernest Johnson to testify. We think that he manifested sufficient intelligence to understand the nature and obligation of an oath.

Appellant also excepted to the action of the court in permitting evidence by the sheriff that search was made in the county for a strange negro, and that no such negro could be found, and also proof by one Buck Johnson that he was acquainted with all the negroes in the town of Sweet-water, and that strange negroes in town usually stopped at his house, and that he knew of no such strange negro in the county at that time, and that none such had stopped at his house. All this testimony was objected to by appellant on the grounds that it was incompetent, irrelevant, and did not prove any issue in the case, and was calculated to prejudice the defendant before the jury, etc. We presume that the theory upon which this testimony was admitted on the part of the State was because the prosecutrix had stated that it was a negro who had committed the rape upon her, and that she was subsequently unable to identify appellant, and it was deemed competent for the State to show that there was no strange negro in the county, and that, therefore, it must have been appellant who committed the assault on the prosecutrix. There is no proof in this record that appellant was a strange negro. So far as we are advised, all the negroes in the county were strange negroes to the prosecutrix; and we fail to see how the fact that the sheriff could find no strange negro in the county at the time or that Buck Johnson had not seen any strange negroes at his house, was competent evidence in this case. Inasmuch as the court, admitted this testimony over the defendant's objection, the jury might have been led to believe that this character of negative proof served to fix and identify appellant as the perpetrator of the assault.

We believe that inasmuch as the State was permitted to prove that Jim Trammel, a State's witness, had become responsible for defendant's fee to the attorneys representing him, on cross-examination he should have been permitted to state why he so became responsible. The purpose of the State was, no doubt, to handicap him as a witness, and the defendant had a right to have him make any reasonable explanation. The appellant, in his bill, does not state what he expects to prove by said witness; but the court, in his explanation, states that Trammel told him that he was helping the negro because he had good to him and his family, and because from what his wife had told him about the matter, he did not believe that defendant was guilty. As the State was permitted to go into this matter, though the answer of the witness merely involved his belief, we think that the defendant was entitled to this evidence.

We do not believe that there is anything in the motion made by defendant to correct the verdict of the jury, and think that the verdict was sufficiently clear and certain. We have examined the record carefully, and, assuming that the identity of the defendant is sufficiently established, it occurs to us that the proof that he had the specific intent to rape is not as clearly made out as it should be. Perhaps, on another trial of this case, this branch of it may be more fully developed.

For the errors discussed the judgment is reversed and the cause remanded.

Reversed and remanded.

DALLAS TERM, 1898.