38 S.W. 803 | Tex. Crim. App. | 1897
Appellant was convicted of rape, and given five years in the penitentiary, and prosecutes this appeal. The indictment charges that the prosecutrix, Minnie Simmons, alias Minnie Cannon, was a female under the age of 15 years, and that the defendant made an assault upon her, and did then and there ravish and have carnal knowledge of the said Minnie Simmons, alias Minnie Cannon, against the peace and dignity of the State. As to her age, the prosecutrix testified that she was under 15 years of age in the fall of 1895, at the time of the alleged rape; that she was 14 years old in May before the occurrence. On cross-examination, she testified on this point that she knew she was 15 years old now, because she knew her age since she was a child; that she did not know the year of her birth; and that her mother told her age to her about a week before she got sick. The State also introduced one W.J. Hanna, who testified that he was a resident of North Carolina, and was a brother of the mother of the prosecutrix, and the prosecutrix was his niece; that she was born either in April or May, 1881. This witness testified that he knew her age from circumstances; that, among other things, he remembered that she was born the year that Garfield was shot; that her mother visited his father's house where he (witness) was then living; and that said prosecutrix was then a baby in arms, not more than four or five months old, from her appearance; and that he knew of another sister's baby who visited his father's house *40 at the same time, and that child was five or six months old, and, judging from the appearance of Minnie, she was about the same age as the other child. As to the act of carnal intercourse, the prosecutrix testified: "That her mother and an older: sister (with whom she was living in Sherman) died perhaps a year before the occurrence. That she continued living at the same place with her older sister until she died, and then she lived at different places. That in the fall of 1895 she went to live with the defendant, who was residing in Sherman at the time. That while living there, defendant and his wife and children and the prosecutrix all slept in the same room. There were two beds in the room. Defendant's wife slept in the bed in the northeast corner. Defendant slept on the pallet on the floor, and prosecutrix slept in the bed in the south-east corner of the room, with the defendant's little child, two or three years of age. That, shortly after she went there to live, defendant's wife gave birth to a child; and, while she was confined, defendant came to the bed of the prosecutrix, about 10 o'clock at night, and woke her up, by pulling tip her clothes. She told him to quit. He did not say anything, but continued to pull up her clothes, and got on top of her, and had carnal intercourse with her. That at first she told him to quit, but afterwards consented for him to do it. That she did not make any outcry. The reason she did not was because she did not know what to do. That there was a lamp burning in the room at the time, but it was behind the box on the sewing machine, and her bed was in the dark. She testified that this was the only time she ever had carnal intercourse with any person. There is also in the record the testimony of two witnesses, to the effect that some time thereafter, when it appeared to them that the prosecutrix was enceinte, she stated that the defendant was the cause of it. They then interviewed the defendant on the subject, and he stated that, if she was pregnant, the baby was his, and he would take care of it. Appellant's wife testified that the act of carnal intercourse could not have occurred as stated by the prosecutrix; that she was in the same room at the time the rape is alleged to have occurred; that, at the time, she was very wakeful; the light shone all over the room, and defendant could not have had intercourse with the prosecutrix without her knowing of it, and it did not occur. In the record there is testimony of several witnesses, to the effect, that the prosecutrix stated to them that she was 16 years old at the time when the alleged act of intercourse occurred. The prosecutrix admitted that she stated this to John Glenn and Mr. Andrews, a policeman; that she told them this because she was afraid they would send her back to North Carolina, and leave her little brother here; but she stated that she did not remember telling Mrs. Prather, Mrs. Bice, Jim Keys, Mrs. Jim Keys, Mrs. Throckmorton, Mrs. Rube Neely, or Jim Potter, that she was 16 years old, either in July, August, September, October or November. The statement of facts also discloses some testimony in regard to the pregnancy of the prosecutrix. This is, in effect, a summary of the case.
W.J. Hanna was introduced as a witness for the State, and testified *41
as to the age of the prosecutrix. He testified that she was born either in April or May in the year 1881, and stated in that connection that the date of her birth was impressed on his mind by several circumstances. One was that in that year President Garfield was shot, and that he remembered that circumstance, and during that year the mother of the prosecutrix, who was his sister, was visiting at his father's, where witness was then living; that said prosecutrix was then a very small child, being nursed in her mother's arms. Another circumstance was that the wife of one of the brothers of the witness, who lived in the neighborhood, gave birth, to a child about the 15th of April of that same year, and the mother of the child visited his father's house with the child when it was four or five months old, and at the same time his sister, the mother of the prosecutrix, was at his father's house with her baby, the prosecutrix. Another circumstance was that in the year 1881 he had a brother to marry about the 1st of August, and that it was about two weeks after his brother's marriage that the prosecutrix's mother visited his father's house. Appellant objected to all of this testimony of collateral facts, on the ground that the same was incompetent, was argumentative, and an opinion and conclusion of the witness. It will be observed that the main fact was the date of the birth of the prosecutrix, and the evidence of collateral facts was merely admitted as circumstances in the mind of the witness tending to fix the date of the birth of the prosecutrix and her age. It is frequently the case that an abstract or isolated fact, that could not be remembered of itself, is impressed upon the memory by incidents or collateral facts more or less intimately associated therewith in the mind of the witness. The force of these impressions as to the main fact will, of course depend more or less upon the logical sequence or connection with the incidental matters associated therewith. Human experience teaches us that certain ideas or thoughts are interlinked with classes of ideas or thoughts, and, according to mental philosophers, one idea or thought has its association with other ideas and thoughts, and one suggestion may become the prolific parent of a chain of ideas or thoughts. Of course, these become more or less cogent, as they appear to be interwoven, or there is a logical connection between them. If the mention of one fact appears to be associated with the main fact, and to be logically connected therewith, the mention thereof by the witness, in connection with the main fact, would furnish the jury with the reason for the recollection of the main fact, which would be more or less cogent as it appeared to be logically associated with the fact in question. The fact, however, that the connection of the incidents to the main fact appears to be weak, would not furnish a reason for the exclusion of the incident. But to suppose a case: If A. meets B. casually, and there is nothing to impress upon the mind of A. the day of their meeting, his relation of the fact, together with the date afterwards, might not be calculated to impress the jury with its truth, as there was nothing to fix in his memory the date. But if he states that it was on the 4th of July that he met him, and that it was at a certain *42
public gathering, these will be circumstances to impress the day upon his mind; and, while they would serve the purpose of strengthening the recollection of the witness, at the same time these collateral circumstances would widen the scope of a cross-examination, and, if the date was not true, there would be greater latitude for contradiction. Mr. Rice, in his work on Evidence (see, 3 Rice, Ev., p. 336), says: "A witness is at liberty to state certain collateral facts that tend to fix some other fact, about which he is being questioned, in his memory; and it frequently occurs in examinations that the fact of having had a conversation concerning a certain matter is one of the surest methods of remembering the subject-matter called for." So, in our opinion, the court did not err in permitting the witness for the State to testify as to such collateral matters, which served to impress the main fact upon his recollection. The witness, Hanna, also testified that from the appearance of the child of his brother's wife, which he knew to be four or five months old at the time, and the appearance of the prosecutrix, Minnie Cannon, the child of his sister, she could not have been at the time of her visit to the house of his father, over four or five months old. This testimony was objected to, because it involved the opinion of the witness as to the age of the prosecutrix at the time. This character of tesmony has been held by our own court, as well as by the courts of other States, admissible. See, Walker v. State, 25 Tex.Crim. App., 448; Koblenschlag v. State, 23 Tex.Crim. App., 264; Marshall v. State,
Reversed and Remanded.