199 S.W. 292 | Tex. Crim. App. | 1917
Lead Opinion
This is a conviction for incest with punishment fixed at confinement in the penitentiary for a period of ten years.
The other party to the transaction, as charged in the indictment, is Docia Alexander, a daughter of appellant. Her testimony, with corroboration, supports the verdict. No abuse of discretion is shown in overruling appellant's application for a continuance. It appeared from the court's qualification that there was no probability of securing the personal attendance of one of the witnesses and that ample opportunity to procure her testimony by other means had been afforded and declined, and that the other absent witness was present at the hearing of the motion for new trial and was not called upon to verify the truth of the allegations in the motion for a continuance as to his testimony. Hunter v. State, 59 Texas Crim. [Rep., 439; Lane v. State,
One of appellant's complaints is based upon the refusal of the court to exclude evidence of acts of intercourse other than that on the days named in the indictment. The question of law thus abstractly presented has long been a subject upon which there has been a diversity of opinion expressed in the decisions of this court and the dissenting opinions of its judges. Illustrative are: Clifton v. State, 46 Tex.Crim. Rep.; Gillispie v. State, 49 Tex.Crim. Rep.; Skidmore v. State,
There are no exceptions to the court's charge though some special charges were requested. One of these involves the proposition that the sister of Docia Alexander became an accomplice by reason of her knowledge of the intercourse between her father and her sister and her failure to remonstrate or disclose it. The daughters of appellant were, respectively, fourteen and fifteen years of age. Their mother was dead. They were members of their father's household and under his control. We do not think the fact that the sister had knowledge of the transaction, under the circumstances, made her an accomplice or raised that issue. Noftsinger v. State, 7 Texas Crim. App., 301; Branch's Crim. Law, sec. 319, and cases listed. The other charges requested are covered by the main charge in so far as they related to the evidence. The bill presenting the charges is quite indefinite, simply stating the charges, numbers 1 to 5, inclusive, are presented in due time and refused by *435 the court and the exceptions taken. None of the charges are set out in the bill, either in tenor or effect, nor are there reasons assigned showing their applicability to the case. C.C.P., art. 743, Vernon's Crim. Stats., vol. 2, p. 521, note 57, and cases cited. We have read them in connection with the other parts of the record and reached the conclusion that if more definitely presented, our views as to the disposition of the case would not be affected thereby.
Appellant suggests in his brief that there was evidence of acts of intercourse between appellant and the sister of Docia Alexander; that while this testimony was withdrawn, it was of such damaging character that its withdrawal did not cure the error in its introduction. If it was shown that such evidence was introduced over appellant's objection we would regard it as very serious. In the absence of bill of exceptions, however, showing that it was introduced and that appellant objected to it, the subject is now brought before this court for review. C.C.P., art. 744: Vernon's C.C.P., p. 554, and cases cited. There is copied into the record a bill of exceptions prepared by appellant, but the judge refused to approve it and the appellant failed to verify the facts by bystanders. The law precludes the consideration of the matter.
The district attorney, in his argument closing the case declared that: "Defendant, after the death of his wife, became a wild demon. . . . This is a case that deserves bitterness." The following quotation from the bill is taken: "Then stating with reference to his talk and conversation with witness, Docia: `The more I talk with her, the more I am impressed with her truth. . . . Defendant never did try to find the author of Docia's shame. . . . Look at that satanic grin and laugh on his face.'" Without approving the terms selected by the district attorney in the argument mentioned, and considering alone the question of law, involved in the bill, we think that viewed in the light of the previous opinions of this court, particularly that of Morris v. State, 39 Tex.Crim. Rep.; Turner v. State,
Counsel, in a brief displaying commendable and exhaustive research, have presented the matters discussed and others in the record. After a careful examination of them we are constrained to believe that the record does not disclose that appellant's trial was unfair, or that there was departure from the procedure provided by law to protect his rights.
It is therefore ordered that the judgment of the lower court be affirmed.
Affirmed.
Addendum
In view of appellant's earnest contention that the motion for new trial, based upon the action of the trial court in overruling the application for a continuance, should have been granted, we have carefully reviewed the matter.
The motion for continuance contained the allegation that Dameron, a witness named therein, would testify that Docia Alexander, the daughter of appellant with whom the incest is charged to have taken place, had asked the witness to procure poison that she might administer it to her father. On the motion for new trial appellant set up the fact that in attributing this statement to Docia Alexander he was in error, but that the witness would give such testimony with reference to May, the siter of Docia Alexander. The record shows that May Alexander was an important witness corroborating Docia and that appellant, by his conduct at the trial, endeavored to show, through circumstances, conspiracy between the two girls against him pursuant to which they gave damaging testimony. Appellant was tried March 22. His motion for new trial was overruled April 4, at which time the witness, Damron, was present. He was not offered as a witness to verify the allegations in the motion for new trial, nor did any affidavit from him accompany it.
There are instances in which a motion for new trial should be granted because of absent testimony, though the application for a continuance to obtain it was properly overruled for want of diligence. Branch's Ann. P.C., p. 188, sec. 319, and cases cited; Casanova v. State, 12 Texas Crim. App., 554; Baxter v. State,
When the application for a continuance was presented, it was urged on the proposition that the absent witness, Damron, would, if present, testify to a conversation with the injured party, Docia Alexander. As presented on the motion for new trial it appeared that the absent witness would not testify to the alleged statement made by Docia Alexander, but that he would testify to a statement made by her sister, May Alexander. As arising on the motion for new trial the testimony of the absent witness could not bear upon the abuse of discretion of the trial court in overruling the motion for a continuance, for the reason that the proposed testimony was not in the application for continuance at all. On the motion for new trial the testimony of the absent witness could be considered only as coming within the principle of newly discovered evidence. In other words, the motion for new trial was sought on the ground that Damron, who was not present at the trial, would testify to a statement alleged to have been made by May Alexander, and that the fact that he would give such testimony had been learned since the trial. Applying the rules applicable to a motion for new trial on account of newly discovered evidence, it will be found that the decisions of this court are uniform to the effect that if the motion is not supported by the affidavit of sworn statement of the absent witness, or the absence thereof satisfactorily accounted for, that the action of the trial court in overruling the motion can not be reviewed. Stallworth v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 238; Burrell v. State, 62 Tex.Crim. Rep.; Polk v. State, 60 Tex.Crim. Rep.; Martin v. State,
One of the elements essential to require this court to review the action of the trial court in refusing a new trial on account of newly discovered evidence is that it must appear that the evidence is probably true. Gass v. State, 56 S.W. Rep., 73; Smith v. State, 28 Texas Crim. App., 309; Kirksey v. State,
Another matter stressed in the motion for new trial is the contention that May Alexander was an accomplice and that her testimony should have been weighed by the jury under instructions by the court as accomplice testimony. This is based upon the proposition that May Alexander knew of the crime and failed to disclose it. According to the rule applied in this court she was not an accomplice. Noftsinger v. State, 7 Texas Crim. App., 324; Schakey v. State, 41 Tex.Crim. Rep., 53 S.W. Rep., 877; Elizando v. State, 31 Tex.Crim. Rep.; Webb v. State, 60 S.W. Rep., 961; Loyal v. State, 39 Tex.Crim. Rep.; Smith v. State, 23 Texas Crim. App., 357; 59 Am. Rep., 576; Rucker v. State, 7 Texas Crim. App., 564. In view of these authorities we are constrained to overrule the motion for rehearing.
Overruled.
