Dusek v. State , 48 Tex. Crim. 519 ( 1905 )

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

Appellant contends that the court erred in failing to limit in its charge the testimony of the witnesses John Barker and Dan Cass to the purpose for which it was introduced to wit: the impeachment of the witness Stallmarch. It appears that on the trial appellant proved by Dr. Stoeltge that the prosecutrix told him that the act of carnal intercourse involved in this charge occurred in the branch among some high blood weeds, and not at the cotton house as testified by him. The two witnesses above named were introduced by appellant and testified that on a former trial of the case, Dr. Stoeltge did not testify that prosecutrix told him it occurred on the branch in some blood weeds, but that she told him it occurred in the cotton house. This evidence was introduced evidently for the purpose of impeaching the witness Dr. Stoeltge. However, was it likely that the jury might appropriate it for some other purpose? If so, it was the duty of the court to limit it to the purpose of impeachment. Jurors are ordinarily not men learned in the law or capable, unless instructed by the court, of confining evidence introduced for one purpose, but are apt to appropriate it for some other purpose apparently applicable. Here no doubt the jury were looking for evidence to sustain that of the prosecutrix, and they might have appropriated the testimony of these jurors to a corroboration of the prosecutrix. Hence, we believe the court should have limited the testimony by a proper charge.

We do not believe it was competent for the court to have admitted the testimony of the witness W.W. Chambers. While it may have been the purpose of the State to impeach the witness Anton Lesovsky, it was not in impeachment of him, because he testified, as did the witness Chambers, as to what occurred in his office. Witness Chambers was not present when witness Lesovsky testified what prosecutrix told him outside the office; and consequently the testimony was not in impeachment. So there was nothing to authorize the introduction of this character of testimony in order to corroborate the prosecutrix. If this testimony had been admissible, it should have been limited to the purpose of impeachment.

In our opinion it was the imperative duty of the court to have limited the testimony of the witness Lesovsky, which was to the effect that the prosecutrix told him on the outside of the office, after her statement made to Chambers (county attorney) that the defendant did not succeed in having intercourse with her; that he attempted to but failed. This testimony was introduced for the purpose of contradicting the testimony of the prosecutrix, who testified that appellant had complete carnal intercourse with her at the time and place stated. Evidently the jury must have appropriated this evidence as original testimony against appellant, inasmuch as they appear to have disregarded the testimony of the prosecutrix, and found a verdict which is alone sustained by this hearsay testimony, introduced merely for the purpose of impeaching the witness Lesovsky. If they had believed her testimony they should have found appellant guilty of rape, as charged in the indictment. However, they found him guilty of an assault with intent to rape, and there is no testimony suggesting this, except this testimony of the witness Lesovsky.

We do not believe that the court erred in refusing to permit appellant to prove the character of Anna Dusek and Fannie Marshek, as to their truth, honor and chastity. They were not introduced as witnesses in the case. Nor was there any evidence of any conspiracy on their part to authorize an attack on them.

Appellant strenuously contends that the testimony, as shown in this record, is not sufficient to sustain the verdict; and furthermore that the court should not have charged on an assault with intent to rape at all, inasmuch as there was not legitimate testimony authorizing this charge. It occurs to us that the latter contention is correct. We are inclined to the view that the facts developed in this record fail to sustain the conviction. Gazley v. State, 17 Texas Crim. App., 267; Lawson v. State, 17 Texas Crim. App., 292; Draper v. State, 57 S.W. Rep., 655.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.