Wiggins v. State , 47 Tex. Crim. 538 ( 1905 )

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal.

Appellant moved to quash the indictment on the ground that there were two counts in the same: one charging rape, and the other incest; and that these were incongruous and incompatible offenses, charged in the same indictment. We do not agree with this contention. Both counts are predicated upon the same transaction, and each charges an offense arising therefrom, though they are distinct offenses. This affords no reason why the indictment should be quashed.

Appellant contended the trial should have been postponed to give him one entire day after service of the special venire, which was served on Saturday, November 12, about 3 o'clock, and defendant's case was called for trial on Monday morning, and he was forced to trial on said last mentioned date; and that Sunday is no day in law, and therefore he had been deprived of one full legal day. This was a sufficient compliance with the statute. Adams v. State, 35 Tex.Crim. Rep.. Appellant also contends that the copy of the venire served on him contained only names of nine persons summoned by the sheriff, whereas the original writ and return showed that forty of the special venire of sixty were summoned by the sheriff. The bill refers to the proceedings on the motion to quash the venire. In those proceedings we find what purports to be a copy of the jurors served. From this we take it, that appellant is complaining, there is nothing opposite the names of a number of persons showing what service was had on them; and that there are no dots opposite such names, showing that the service was similar to the above. If this is the objection urged, we think the whole copy should be taken together, and the concluding portion thereof shows the particular jurors not served. We think this makes the matter of service sufficiently definite, leaving the remainder of the names served. The court did not err in overruling appellant's objections. Nor did the court err in authorizing the deputy sheriff to make service on the special veniremen; the court appears to have heard proof on the question, and determined that said deputy was not prejudiced against appellant. At any rate he was not summoning talesmen, but merely making service on the veniremen as drawn. We do not believe there was any error in these proceedings.

As to the statement made by appellant after he was under arrest, we think the explanation of the court shows he was warned.

By a number of bills of exception, appellant questions the action of the court permitting the State to prove other acts of carnal intercourse between appellant and prosecutrix, besides the one on trial. From the bills, it is shown that the first act of intercourse occurred in Grayson County, Texas, in 1901, and continued at intervals up to the act of intercourse in question. This was objected to by appellant on the ground that said other acts were not connected with this act, and would tend to shed no light upon it, but would have the effect to prejudice the minds of the jury against appellant. The court explains the admission of this character of testimony, by stating, that the testimony was only admitted upon re-direct examination of said witness by the State, and after the character of the cross-examination given said witness by the defense, tending either to show that prosecution was from ill will, or that conduct of father towards daughter was from jealousy; and also said testimony was limited in the charge. It does not occur to us that these reasons assigned by the court were sufficient to have admitted the testimony of such other acts. If prosecutrix was actuated by ill will to testify against appellant in the transaction on trial, her testimony as to other acts would not show that she was not actuated by ill will as to such other acts. Nor, because appellant may have been jealous towards his daughter, and was actuated in his conduct towards her by such motives, would the testimony of other acts proven by her, tend to contradict this matter. We can see no difference between this case and a number of others in which it was held that this character of testimony was not admissible. See Smith v. State, 7 Texas Ct. Rep., 343; Ball v. State, 7 Texas Ct. Rep., 105; Barnett v. State, 7 Texas Ct. Rep., 391; Hackney v. State, 7 Texas Ct. Rep., 890. The Assistant Attorney-General has referred us to Henard v. State, 10 Texas Ct. Rep., 191; and insists that this testimony may come within the rule laid down in that case. In that case we held that acts tending to show a degree of familiarity between the parties not extending to acts of carnal intercourse were admissible, but here the State did not stop with acts of mere familiarity, but proved other acts of intercourse. Because this character of testimony was not authorized, the judgment is reversed and the cause remanded.

Reversed and remanded.

Davidson, Presiding Judge, absent.