Coons v. State , 49 Tex. Crim. 256 ( 1906 )

Appellant was convicted of adultery, and fined $100.

The first bill of exceptions shows that the State propounded to Mrs. M.E. Shaw questions to which she replied: "That after she and defendant left Godley, and while engaged in the organization of the Bankers Union, they went to Glenrose, in Somervelle County, and remained there for about one month; and that she and defendant worked together in the organization of said lodge, and boarded at the same hotel." Appellant objected to the introduction of this testimony, because with reference to facts occurring in another county than that in which this case was filed, and being tried, and beyond the jurisdiction of the court, and was not therefore competent testimony as to defendant's guilt; that it was irrelevant, immaterial and prejudicial to the rights of defendant. The bill does not show how long prior or subsequent to the date alleged in the indictment defendant and witness were working together and boarding at the same hotel in another county. If it was immediately after or before the date alleged in the indictment, the testimony was germane and pertinent to the issue being tried. See Funderburg v. State, 33 Texas Crim. App., 392.

The third bill shows that Mrs. Shaw, on cross-examination, over his objections, testified, "That she understood A.A. Coons had been married, but did not know whether he had a divorce or not." Appellant objected on the ground that it was hearsay, not the best evidence — the record being the best evidence of the marriage and divorce of appellant; and urged the same objections as in the former bill. The fact that witness testified appellant was a married man is not hearsay, and the fact that she did not know whether or not he had a divorce could not have injured appellant, since there is no affirmative statement that he had or did not have a divorce.

The second bill shows that State's witness Zelesky was permitted to testify, that he suppossed appellant was a married man; that he was several years ago. He lived with a woman understood to be his wife, and had a family living there. Defendant at the time it was offered objected, because an opinion of witness, not the best evidence, remote and indefinite as to time. This testimony was admissible.

Bill No. 5 shows that the State's witness Clay Riley was asked: "Did Lee Hedges tell you what to testify?" Witness replied, "Lee Hedges did not tell me what to testify." Appellant objected because leading and suggestive, and hearsay. We see no objection to this testimony.

The sixth bill shows that State's witness, Lula Morse, testified "that she understood M.W. Shaw was a widow, and that she was a grass widow; that A.A. Coons had said she was a widow, and that he had said so at the table, in a general conversation, when witness was present." Appellant objected to this testimony on the ground that it was irrelevant and immaterial. This testimony was admissible.

Bill No. 7 shows that State's witness, Mrs. Lula Morse, over appellant's objection, testified that appellant's codefendant, Mrs. Shaw, was called "Muggins" by appellant. The objections are the same as urged to the other testimony. We see no error in admitting this evidence.

Bill number 9 shows that the State was permitted to prove by Mrs. Lula Morse, "That defendant insisted that Mrs. Shaw change her room from downstairs at the hotel where they were stopping, to an upstairs room, and near appellant's room." In our opinion there was no error in admitting this testimony.

The tenth ground of the motion for new trial insists that the evidence is not sufficient to support the conviction. The facts show a continuous living together in the same house (hotel or boarding house) for two or three months; and that on one occasion appellant and his codefendant, Mrs. Shaw, were seen upon the bed in the act of intercourse. It is true that this last fact is sharply controverted by the testimony of witnesses who swear that prosecuting witness could not see parties lying upon the bed through the key-hole in the door. But this was a question for the jury. There was no relationship shown between appellant and his codefendant, such as warranted the very cordial and undue familiarity that the record shows. Defendant had previously been married to another, and the record shows no evidence of divorce. The testimony taken as a whole leads irresistibly to the conclusion that appellant is guilty as charged in the indictment. The judgment is affirmed.

Affirmed.