Calyon v. State, 174 S.W. 591

83 v. The State. 1915.1 more change, hut a there no need for so great when is procedure, so, is If there would as it written. with the law compliance implicit that it will not manifest, hope as is and we delay no here great such occur again.

Affirmed. Harry Calyon v. The State. January 27, 1915. 3392. Decided

No. Rape—Sufficiency Evidence. to of the —Assault 1. evidence, Where, rape, although con intent to upon of assault with trial conviction, Following error. White was no reversible flicting, sustained the 559, State, cases. Rep., other 60 Texas Crim. v. Jury. of the —Same—Functions 2. verdict, al sustain rule the evidence is sufficient to is that where witnesses,, testimony of the State’s though there be contradictions only is jury, place take the of the legally can not this court Following evidence the conviction. Kearse is to whether there v. sufficient sustain State, Rep., Texas 633. 68 Crim. Jury—Allusion 8.—Same—Misconduct of to Tes- Defendant’s Failure tify—Character Witnesses—Affidavit. simply solely affidavit made to his affiant’s purported Where information, knowledge, and to miscon- alleging

best belief amended motion jury alluding testify place duct failure char- defendant’s stand, insufficient, acter witnesses error in on the witness and there was same State, overruling Rep., same. v. W. 755. Following 171 S. Hicks Davidson, dissenting. Judge, Stated—Pleading—Proof—Practice. 4.—Same—Rule the jury for new attacks verdict Where motion trial itself, sup pleading must matter of outside of defendant as matter the record specifically else by his affidavit someone show ported own affidavit informed, attack, affiant affidavit that is grounds truth of the believes, etc., an attempted nor to be shown insufficient where it is not shown State, information, Following Morrison v. whom such etc. from 39 Texas received other cases. Crim. Jurors—Charge of Court—Practice—Misconduct 5.—Same—Oath of Jury. Where, rape, properly the court administered trial of assault Procedure, jurors provided Criminal other-

oath wise as under article Code addition, instructing properly, charged them that the failure and in them testify against the defendant to could be taken a circumstance retirement, on in or alluded to motion their affidavit attached commented an that, knowledge, for new affiant to best of information and trial belief, jury or some members thereof commented on the defendant’s etc., testify, require judge or authorize the trial summons failure charge. Davidson, Judge, before answer to dissenting. him to —.Same—Charge Rape. of Court—Definition of etc., threats, hut rape judge Where trial definition included ques submitting finding the case himself to the confined indictment, only charged tion Following force there was no reversible error. and other Railsback cases. Bepokts. [January, Texas Cbimestal Charge 7.—Same—Objections of Court. Where, applied the law rape, assault with intent charges except special to the facts in the submitted all case and of defendant’s required peremptory acquittal which in the court’s

the one those embraced insufficient, general charge, and objections charge to such are do so there was no error. reversible . 8.—Same—Evidence—Appearance and Condition Prosecutrix. Upon trial of rape, assault with intent permitting error in was no testimony prosecutrix as to her appearance the condition when she reached State, home Conger about two hours after the assault her. Following v. 328, Rep., cases; 63 Texas Crim. besides, and other this evidence excluded jury. from the Opinion.

9. —Same—Facts Stated opinion See comments in additional majority of the court with reference stated opinion in the which facts are in consonance with the record and Davidson, Judge, sufficient to dissenting. sustain conviction. Jury—Affidavit—Other 10. Testimony. —Same—Misconduct 841, Procedure, While trial under article Code Criminal hear evidence otherwise and complaint affidavit or determine the issue ato. jury, yet the misconduct of the issue properly pre where such has not been sented, there no error in overruling was' the court’s motion for new that State, refuse testify. Bryant Following summons v. 457, Davidson, 69 Texas Rep., Judge, Crim. other cases. dissenting. 11. —Same—Cases Discussed. opinion See additional and dissenting opinion discussing the decisions in State, 70, of Barber Rep., State, v. 35 Texas cases Crim. Hampton v. 63 Rep., Texas Crim. 100. from the District Court of

Appeal Galveston. Tried below before the Bobert G. Street. Hon. from a conviction assault

Appeal with intent to rape; penalty, four years in the imprisonment penitentiary. states case. for appellant. Pillow, Jr., & Hughes and L.R. question of King On State, court’s v. charge threats: 21 Texas Burney Crim. App., id., State, id., 529; Milton v. 565; Taylor State, 204; v. 23 23 Cox v. 157; 1068; Robertson

State, State, 44 S. W. v. 17 Rep., S. W. Rep., State, 55, 185; Cotton v 52 Texas Crim. 105 Rep., S. W. Shield Rep., State, 893; State, 287; 23 v. W. Steinkie v. 25 W. Rep., Rep., S. S. 381; W. State, Matthew v. 31 S. Hancock v. State, Rep., 47 S. W. State, ; State, 851; 53 Graybill Rep., 4 v. S. W. v. Ellenburg Rep., State, 989; 35 v. 72 S. W. 395. S. Simons Rep., Rep., W. insufficiency of the evidence: Cromeans v. 59 State, On question 1129; State, Blair Rep., 129 S. W. v. 60 Rep.;

Texas Crim. State, 358; Alexander 58 Texas v. Rep., 132 W. Rep., Crim. S. 583; Crim. 43 189; Thompson State, Texas, v. W. 621, 127 Rep., S. Rep., State, id., 487; 1; 55 Texas Eiley v. State, Rep., v. 40 Pefferling State, v. 455. id., Collins Calyon v. The State.

1915.J Lane, General, Theobald, Assistant and Ghas. H. Attorney C. E. M. J. Crawford,, the State.On condition and question E.W. Levy State, v. 167 S. W. 63. Burge appearance prosecutrix: Rep., On of court’s threats: charge Steagald State, v. 22 Texas question Crim. App., 465.

On of insufficient of misconduct of Kann showing jury: 237; macher v. 51 Texas Crim. 118, 101 S. W. State, Rep., Rep., Tyler State, State, 33; 90 S. W. Low v. 71 Texas Crim. Rep., 98; 160 S. W. Jack v. Texas Crim. 656. App., Presiding Judge. PRENDERGAST, Appellant convicted for an assault Avith intent Leta Tinnin on his' rape 4, 1914, July assessed at punishment years four penitentiary. that the Appellant vigorously contends evidence insufficient sustain the is, therefore, conviction. to state some of the tes proper It to sustain the conviction. timony tending What said in court Kearse 68 Texas Crim. is 151 W. S. applicable this case. Avasthere said:

“There is contested case to this hardly any comes court but what there are contradictions in the a testimony, and frequently principal witness contradict himself in material In matters. cases, such it is verdict, contended that the evidence is insufficient to sustain the this court can not take of legally and determine place jury, whether or not it believe witnesses, will witness and from all of doAvnon testimony, court, and sent to this would put paper it as and, have found a different verdict from that of if reverse jury, so, on that account. The only this court question can determine evidence, is whether there is sufficient if believed to' jury, sustain the conviction. This passes of question question law which is all can do under circumstances. law such Our legally that the in all cases expressly provides jury are the exclusive of judges the facts and of the This proved weight to be given testimony.

court therefore can not take usurp-, without jury never or intended to be to it. The ing authority given given fair, in a is of twelve jury felony disinterested, case made impartial, unbiased, and unprejudiced, competent selected fromffiifferent county, of the each one of looks portions ses, whom hears all witne them the ti face when observes their manner and method testifying, ?

of their argu- examination then hеars respective attorneys, je^ ment side, for each side attorneys of to break doAvn undertaking the witness and of attention contradiction testimony every calling matters, others of the other to sus- explaining seeking such tain hear retirement the witness, such then them in their and take with Then the charge pri- the court. men discuss and consider twelve vate it all between themselves all matters, and, after weighing all the conclu- arguments it,, come to the against in support witnesses, sion con- of a witness, although certain testimony tradicted and of such although testimony there are contradictions Ceiminai, Bepobts. [January, witness, is true and believe it. The they is made jury

men different ages, from men, old young comparatively pursue different occupations and businesses. With all surround- these much ings are more competent arrive the truth than are the of this must judges who look solely as written testimony down on It can not paper. and the portray manner, looks, deportment of the witness, nor the manner of his examination and cross- examination the attorneys. this, Besides hears presiding judge and sees and all that the observes does in the of the case and Therefore, then sustains the verdict of jury. when the evidence taken in its light verdict, favorable sustains the this court can legally set it aside.” The statement facts contains typewritten We fifty-four pages. it, have read more than once, and it. carefully testimony studied The establishes some facts without controversy. We here state will some of these. Beta Tinnin, assaulted alleged girl, was just fifteen past years

age. lived She with her in Alvin. parents never She kept company ' with any boys to this and her prior parents her permit witnesses, out alone. Most all accept company go in speaking her, her designated little girl. appellant seems to have been man, grown though age stated. The little Beta, girl, never seen him before the assault alleged and he day was not introduced to her on occasion. On date there was a political picnic County, Galveston

mainland, some miles from twelve Alvin. On the day of that morning said little with a girl, together young daughter Bomine, Mr. Sue, John in a constable, buggy, with to said went There was picnic. men, crowd of and at large women children had picnic. They various classes of amusements on the grounds day. picnic extent of the is not picnic grounds though there are indica- given, some tions it was on about a 100-acre of land and At tract at a creek. locality soldiers their were horses them. racing and jumping More less crowd that amusement. At or was another location watching had their speakers and more less were political people giving At attention to that. another had dance place they stand and a dance n was on. A considerable number were to going their attention giving And amusement. at another was a locality which, baseball game, it seems, attracts more or less always attendance. There attractions also on the other and down ground. Up creek was less timber and more or and some undergrowth brush. This extended from to the creek some from seventy-five yards it. The had a creek kind double, it. treble, bank benches to A bank running up the water a few feet and back high extending some ten eight or perhaps feet. Then another bank or rise feet several high and to extending bench; then, another still another to reach seems, level apparently ground. 4 or o’clockin the

Along Beta, about little evening her girl, com- 1915.] v. The Caltos" State. and constable, daughter Bomine, 14-year-old Drewie

panion, sister, little were Leta, an and her and companion perhaps associate her. approached the dance when watching at the dance pavilion walked testimony. her She said: “He We some of now give (Leta’s) dance. him. couldn’t to dance I told him I to me and asked me with up ?’ ‘There are no girls me I says, go bathing says, with you He ‘Will in.’ He there are no other I am not going .girls in Lathing; sort will I too, and with me and I show are, you.’ ‘There come says, ‘I first, says, not and then I will go you, want to go walked bathing. not there.’ The We know are girls I he stopped, and and ways ‘Stop,’ down that a little he I says, and saw,’ I and are sweetest ever around me ‘You girl his arms put says, cry not do started to and to kiss him. would it. I tried to me I get I until and he he not do it loose, says told turn me would and him to fell, and to get me then I he kept trying kissed him. He and tripped let to said, go,’ it. ‘You me I got to him. I would do I up, me kiss started to he kiss me.’ ‘I am do it.’ I says, going ‘You I says, and me, trying didn’t come and he kept calling help nobody told his me and I wouldn’t it. He me to take hold of get to kiss him do ‍​​​​‌​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​​​‌‌​‌​‌‌‌​​​‌‌​​​‌​‌​​​‍that, root. to do his hand over time, At that when he me told he told mouth mouth, time, and his over mouth my part my to, me hush, me to would and he holler, keep trying get and I would says, my root,’ it. hold of tried to feel I wouldn’t He ‘Take do then, anything breast. he said if I don’t remember the exact words my told was him feel of and I get said. He tried me to let breast my time, that, At that when he me was on the quit. ground; asked I on the me. We was on the ground. he both He tripped side, as near as I could and he ground. trying get I would my right of me. He me. At get right get would top top of time I He stuck his hand just did see a his portion private person. he At that down his time pants. under and commenced undoing me he he exposed down. After said do and when lying testified, well, me to—tried to person, get put I was trying I mine, hand his mouth mouth, over he was my putting would his mouth in I just bite and оne time he mine put hair, lay reached just ground; and I over up pulled act me sort of he was not. He crazy, try get like not, hush I He me to I I would hollering. told hush, said, ‘If ‘Let said, says, me TLet me or I will holler.’ He up.’ me, and tell I kill you holler will When I fell you.’ ground me, and went down on the and he my the condition tripped clothes as to whether or not were down. they body, were down my they as far that it, He dress as he had pulled my up get could his hand last way. his hand under put my-slips. He the My slips, was next to skin. to come my trying I was someone to underclothing get me; hollered, Hlelp.’ help after I hollered loud. I I hollered for Well, all the time. after started that, says, time I to get up one he ‘Don’t run,’ my dress, me here at and I to you grabbed right stopped Reports. añuary, Texas Criminal [J umbrella hold At

pick and he took of me my again. first heard up me, walked and Drewie down then she way herself; turned around and went and told sister; back little is Drewie Romine. my There someone else there. was little sister came there. Next My my after well, sister I came, know, Mrs.—I don’t can’t call name,—Mrs. her the Kavelder, called; name.you she was the just buggy; she came said, down rascal, there ‘You you get and run.’ He up was trying then; run, me to take hold she get says, of it came and ‘You better rascal,’ and you got ran, started— ... up I did not give my the defendant make this consent assault me or to commit offense, or have sexual intercourse with all me; I was fighting time. I at that time when At crjdng Mrs. Kavelder up. came time I was him or fighting scratching I made some marks defendant, several . times, right along (indicating face). . . When up grandstand he came Drewie was me spoke, with asked there, and another little her first. girl; was Drewie Romine little is not here girl. another She this morning; I name know her it. but can’t think of I know her well.”

This girl, Leta, little fifteen just years of past age, subjected lengthy, and exhaustive very seаrching cross-examination one attorneys, able appellant’s who extensive an experience It is all character of cases. that she attorney strange circumstances, under such given testimony contradictory of herself in some in others perhaps particulars weaken, her direct testi- strengthen do not mony. We in detail her propose give testimony upon cross- examination, but will it. excerpts we from give things She described the various about grounds best picnic she other Among things, substance, could. stating entered from the picnic grounds gate Dickerson dance road; about less a half mile or this that trees extended pavilion gate; the bank of the creek and for and down some hundred up fifty creek, from the all was on steps along. dance the outer pavilion edge grove trees from the creek. dance from the “Coming man when I started went pavilion young we away, down road; Dickinson along creek toward trees are thick pine pretty . there. . from the I I met de- Coming pavilion, say where creek toward fendant, down the shell I and the defendant roád, the little walked down led path toward the down pavilion creek, bank, and to brow of the hill took that on the second we say little and walked down did not skirting path creek.....He he wanted me to then road go. which He off towards the walked way 'down to the bank remem- the creek creek and I went him. close down coming ber creek the other the brush comes we other where way; where the was. There brush the dancing notice thick; went it in a ... I did not we were trail. pretty acting as to his came to me, when the defendant talk to anjdhing down to go me to the time he asked way. From strangely there were some as to me creek, he didn’t me. And his telling leave 1915:] v. The State. with in me to

girls swimming creek, go swimming down and аsking down him and him that didn’t telling any girls I believe there my that, him there, if there would didn’t tell go were I I swimming; not sec, swimming. I but won’t I down to would go go I in swim- at all. Just to see if there were go go down girls not were; . . You not see could . can from where we ming. you see any ... I didn’t see the the road where we were. creek from there with women; down satisfy I I would thought my go curiosity far not tell bathing.” him if there could how see was anybody She threw was stopped from the dance her when pavilion state- down, can from the her nor tell with like certainty we anything testimony, ment of it must have as we from the facts, been, but judge further. not less than two some distance yards hundred probably did not She testified that off with “I walking further appellant, heme; my catch hold his was a had hold of arm. He little behind I arm. he me from I was arm guess holding slipping. my keep not held onto arm was him. He right against my walk trying up until . at- . . we came to this first we He had place stopped. his until when we

tempted to arm me we And put stopped. around his around asked me to me, he me and stopped, hugged arms put kiss him, time, At I told him his arms around me. put turn me loose; whether or not I screamed I don’t remember exactly then. ... . . . He did I him to loose real loud. told turn me turn began loose at not turn loose. Then I once; me he would me as I to scream; me, screaming he too. Then was as loud tripped I could, another, he mouth. screamed my after his hand over I put . times, . two or three then he his over mouth. . my hand put time, on got I was all the before-1 fighting shoving pushing, loose, people. If I I to run and tell the ground. got going . under . don’t how he tripped me; . I remember feet put mine, got I fell sort on side when I fell. He something. my fell, me, of me. on of me. When down with on top top I went have on my I when he would let me. He didn’t his hand screaming mouth He didn’t after a while then; just lay there; then. say anything to do it.’ said, he would CLetme kiss and I am you,’ going T sаy, me. He me; on lay He did not there on side of it was just top me get me. He wouldn’t let side. my down of laying up he didn’t He I me. And was top screaming him, crying. hand on mouth. ... I was I was angry with my his hand on put . . . hold himself on one hand He would up high as mouth sort of about as My up, other. dress flew my my she . down and pull knees He did not reach my . (when fell). time head, clothes over not then. He no effort at that my made up part to kiss my begged head. He me pull clothes over my my over his hand time he would over and hold lay hand off mouth and me and he would take kicking screaming, me, and and kiss me; and him. when he kissed I his mouth bit bit He once. feet on my blood ran out on his face. ... I got up [January, ¡Reports. Texas Criminal not too. He on his knees here grabbed did and me get up, got (indi- on and tore dress.” cating place dress) my the cross-examination of this little he had her to state that girl

In than in this assault on her engaged longer the time was appellant was was than she said longer twenty five or ten minutes and minutes, per- witness longer. minutes, Appellant’s still haps long thirty forth swore that he was the horses back and on A. Fallette walking G. hall, back the other towards of the timber the dance edge opposite and Beta road; the shell that he noticed the little girl going occurred; to have alleged down towards where the assault is talking minutes heard loud him more than five when he passed not had direction; doubtless Sue); and some down in that was John cursing (this him and and to hold the horses a little came he asked along boy after that a large he then (Sue) appellant; lady (Mrs. saw someone him; and talked rash she threatened pretty came Kavalder) up down couple go hit “From the time I saw this him with her parasol. Kavalder’s this incident happen (Mrs. towards the creek I saw before than six not more five or assault was attempted there) than minutes.” not five six minutes; I am satisfied more (cid:127) all the time. further she was screaming little Beta girl his that was I me to hand on after my “When he first told person, put to kiss there time me long begging on the After ground. laying fell took hand tried mouth, his hand on he and my my holding had it. would not do He my hand on his and I make me person, put take on He did not clothes; ground. his while unbuttoned was and un- me with one hand unbutton his clothes. He held hands to both then, didn’t from him other, and I get away his buttoned clothes with had his He not hand on person. then. And I exactly my not would put Then he let loose to do so. his and asked me his hand on person how don’t know exactly take hold of I it; his asked me to person hands his person. me to begging put my he on that way, carried long back. When me and me hold of caught pulled and he finally got up I hie tree tried to stay up, I took hold of a standing up, I was turned ever went As to whether he me, again. down I would let blew where except clothes my up, over on back my pulled me up his hand first, dress slipped fell, my up when I he pulled up knee). above H¿slipped here about leg, (indicating my his^hand he me,, while and he did lying pants, upjnyjittle " ~ legs his hands ." . ^He would run up my hand . on“my leg. his put He wrong. taughf lég^and me on I had and_pat any to, I him. want didn’t me to love I didn’t was tnung“ta‘get my under his hand did, having all ever about him. This is he use for with tried to me get play He He went further. clothes. never time, feel of breast all . trying my . . He was his person. other. with one hand and breast leg me on the pat mouth, sometimes one over my hand up my panties, He had one came up At the time Romine girl and sometimes breast. my his hand me, and was kissing he love me wanting . v. The State. 1915-1 and I was my breast, screaming as loud as could, I and he let me. say anything I to the Eomine not a She girl, thing.

went the hill and back she see her. help; could At his time over mouth. my hand One of me legs his was over didn’t, then, not. me He one over me to take try get at that time. It lоoks to me. person me like hurt trying too, He hand He over throat, over hand put my lips. put my tried to me He did not hollering. hit time. keep me He to me me from appeared trying getting away. he was keep . . wanted to kiss him. The little went back girl me Eomine across, came; Mary my hill then her and both ran Mary and sister Kavalder—” Mrs. examination, things, On redirect other she testified when among her, how appellant her; he still she know tripped held he didnjt tripped her, he her backwards to one side or how. said: whether She pushed to all "He me from the time. As whether trying keep hollering was to there I was still was to was laying struggling; I I get up. trying hands, him to I scratching my get away. didn’t trying permit him his to down to to make me put try hands take hold his person; didn’t to. At the time his to my I want he took hands dress up, pull his that; hand under did not allow to do didn’t my slip, I him I put it, here, To to want to. I took hold of his him arm tried prevent away. struggle him I could harder struggling. was I push than He his hands his did; I I was best. was struggling my using to All keep feet hold me. time that I was to trying struggling him from to me from he was doing this, trying keep he was hollering; He take breast. me; hold of he was to hold of trying get trying my fast, hands. whenever things two These were taking place pretty his mouth, he me not holler. He hand over my tried get put his mouth, my over over throat. As whether my mouth and his hand well, estimate, or not know a hour or is that is, my I how half best long did know; I don’t was a it seemed to me.” doubtless long time, seem time—an little long age—to girl. she said: "At On recross-examination the time (Mrs. lady was person came down with that the defendant’s

Kavalder) parasol, hill hide came was on down, he was it. She she exposed; trying exposed. then. When he his was got person his was out up person face, sort of his to the crowd or his he As whether he turned back that. I don’t know if his person up like put sneaked back it, I did When saw distinctly. buttoned his clothes. I see it up around. out, was like wrist your dangling (Indicаted just hanging just after to have been is shown wrist.)” counsel This dangling and saw help, screams and other little had heard-her calls girls two had has- Kavalder and after Mrs. her condition and back help ran at the appellant, holloed to the relief the little tened girl back sneak girl brute, called him him off told get surprise it is no off circumstances of her. under these Surely tool was around.” "dangling Reports. anuary, Criminal [J Said witness Drewie Romine testified that the grandstand she was at Drewie, she,

when appellant came little spoke girl Leta; was then she them, another man her was off noticing mind heard him told Drewie ask her dance and she not dance. she did then turned around and didn’t notice and Leta until she saw they from her. That them off soon after that when walking apiece were walked her ready go home, “I and heard getting (the it, little holler for heard went on down When I first girl Leta) help. I a little ways again, me, and she hollered and I found was behind I and went about thought turned around back. I went where I there; was. I could not see I so hollering anything got I excited man there; I didn’t attention. I saw Leta I saw that pay little and Leta. could ground, were on and I hear They lying were ran; noise. didn’t I turned and mumbling stay, lying I I about three times. She hollered just her holler ground. heard buggy. a loud tone. After went to her ‘Help’ I back screaming there, When them think some. moving I saw I did not as I them I ran I look them as soon saw back. very long, He stomach. I saw-she was He on her back. lying lying . '. After I heard kind I saw them. lying her when these screams, else there besides there, nobodjr when I got know parties, there; just there wasn’t don’t anybody. around scream; far Leta it was them when I first heard how I was from away heard was it, first I them, was a little from when I just ways because little them, back. It a past only piece. and then I turned and went was hard Just as I I went as them, buggy. saw I ran back to soon сould I go.” that she had cross-examination, On other she testified things, among “The some distance. started down the creek and had She gone said:. and first time I holler was when I was past buggy heard someone the hill toward had started the brow of bridge. along was I going sixty than the shell further road the shade. I had fiftv gone . I don’t know was. . . When I heard screams how far steps; where the scream came I on the passed hill, brow and passed I and I turned back. back; again from. looked I heard her holler from back, straight didn’t until I got up I see them I turned when hill, when above got them. I back to the and I up came brow They and them, them. There were some bushes weeds. I could see feet to the water. water, were close closer than fifteen to the was time, . heard the second was about . . After I her holler ten feet. on her. . . He was I back a then saw . lying went little and piece doing. were his side with his I could not tell what they over her. leg . . about ten feet . to them: I went within I not say anything did say did not not; of them. don’t she me or she I know whether saw and and then I and looked at them broke to me. back anything went noise, ran. not understand. saw heard a but could I mumbling I little her hands boy’s dress a her Imee.' I did see where the little above and were.” This then she ran back buggy witness shows y. The State. 1915-1

got Mr. John down to Sue, who was and back buggy, ran down were. And back appellant they got where and Leta when Kavalder there was running there; from Mrs. away was then there before she and Sue did. got and John

On redirect examination testified: Leta me she “When came up Kavalder, torn, from her torn; Mrs. dress lace lace . waist, front of her dress. . her there were stains on grass The reason I ran and .went for went Sue, told John I I help; get then Leta.” she help explained position parties And help "were said, first saw them. “She was on her lying when she She lying back, baсk and of on stomach.” he was on little and kind his her, lying On other she the stains recross-examination, among- things, said all shoulder, over her see her underskirt; she didn’t nor on dress, the stomach of of her dress. her nor the knees Loma, testified that Kavalder she lived on farm at Alta Mary Mrs. the little Leta that girl evening. Galveston saw She County,

said: “I and run- Mrs. Dulce drove and a little came park girl sister, that man her we hollering and ning screaming Mrs. Dulce to me to run help. over, should and I took my parasol and ran with little I saw laying Then the fellow girl.

girl hollered, held umbrella and there, I Tet up my girl go.’ Then he crawled on hands feet back to the and then he bushes ran. little flat flat The on her back. He laid girl laying right there, of her. She laid- when I came she when he top jumped up; first n©t crawled off of her. When them—I see anything, I saw I run; just I was distance them away hollered; some I then raised head and he back on hands feet up crawled back- wards, then turned from me and away ran. little girl jumped up grabbed came neck me. to. me me around the and thanked said, She T thank me, you, lady, me.’ coming helping saving She had her dress in front all torn She shook a leaf. Ko open. like portion time, of her at that body her exposed seen, only statements, breast. When she made these Thank coming you, lady, me,’ here was excited and cried; she nervous. She she. helping cried her. not when I saw I did see of the defendant’s any portion at time. person that I run to him and sideways up he crawled back and he had back to me before he got up.”

On cross-examination this witness showed that in the when drove they gate they from the Dickinson road drove the bv where grandstand, people that was further dancing: w7ere than one hundred and she yards, half out of the when about road and jumped buggy between the way the that from a half the was to grandstand; mile quarter grandstand road; to that when out the went got the she buggy they down hill the it was back a to where these that were; piece parties were close to the within about ten feet of creek, it, she pretty up judged.

She said: not them because it is “I could see When high bushy. I I of the hill could see got to the brow them then. perfectly plain they were, could not look you From where and see were up where they Bepobts. Criminal anuary, [J You see was. could the dancing, grandstand where when people not from where at you hill, but I was all. am sure got up I As there lots of around of that. . . . to brush being there where high," about feet thére was not right there, were ten but around they there. not brush either. They just exactly hiding, were There brushes, were not in sure, they brush, were but had brush them. right the side was the water. He was not up lying the water. His head was edge up direction up he creek; it was picnic, parallel lying along his side down, the side was their heads me, me, when I came down little girl and some came where I was. I pike; running up saw She was came girl day. up Bomine who girl running there, not there I me. John Sue was but he came after. got him, I chased him And when I he ran defendant) chased (the away. crowd; He did not down the bayou. away 'creek from the along go he went toward crowd. He was as fast as he could. I did running there. told anything see when I came I ‘Let up girl said, brute,’ You held alone.’ I umbrella and wanted to dirty my close; hit . . . away. him. I was not so he ran When I rushed up- I to them saw was on her. over her. top I he He was flat right can not if over her say he had her dress head and down between up her ... I because he took his hands this over the legs, back. girl’s seen dress torn and he on her. he was girl’s all flat While lay her, top legs I did see in the air and kick- lying waving It looked like held arms ing. he her down. I think had both of he . . her hands. I he holding . When came up just lying her; hеr; know he flat on I don’t if was her not. right laid he holding . . off her, backwards, . When he crawled then backed crawled were. hands until he his feet He and Imees away got the way until fours, on all turned back bushes, back he was so far . . She as he her She jumped go. let up quick bushes. fours, and he hack on his all could, as she jumped quick jumped up -to and then turned his face ran.” bayou heard, examination “This just On redirect she said: screaming bayou. from the A little coming way, before down came girl had sister.” a man her On running up came us and hollered around recross-examination she said: myself, “Besides little girl There was else in nobody distance.” hollering there. Beta,, Tinnin, Mr. Mrs. little girl father and mother of reached she torn clothes when girl’s testified condition of little court. This excluded by home that evidence was later evening. the little- testified that he or working John Sue boarding occurrence; to years Beta’s father for five girl prior continuously years ten was about she ever since he had known said little girl born an mate of old; her father was old school been, time all friends good in the same reared country and been; weighed pounds that as he fathers before them had their guessed he though high—taller appellant, was feet six than Calyon v. The State. 1915-1 did. That about o’clock as he weigh along as much appellant start home went where some he was preparing

that evening then went to his them; he back buggy were told the little girls alarm of the assault came him the gave Drewie Eomine it. got down at out of his ran Leta; buggy, he once jumped on the little girl assault that reached occurred; Mrs. Kavalder to where bayou that both the little Leta and did; girl appellant he saw there before that his was testimony from buggy best we can his get there. The assault grandstand from the where the like 150 yards something beyond thаt, further from grandstand; occurred was 140 or 150 steps not left that there with Mrs. Kavalder had appellant Leta was still he holloed to scene, began then started leave and him stop, but that and he him, grandstand but ran appellant cursing towards. on the about 100 “And he came bank and ran yards. up

followed him for his face at that him. I saw time. There looked to got into me and I scratches, face, welts, on his but kind of finger prints that on the side right I believe was bleeding. (indi- that was place ear.” That were unbuttoned when appellant’s pants behind cating) were unbuttoned them; saw him was fasten trying he first and he bottom; little that when he first to the scene the got in front from top understand she was Leta he couldn’t what girl crying; saying was talk, couldn’t. Kavalder, was, Mrs. she tried to but like she she crying from “And when I his were unbuttoned to bottom pants top saw that hook out;—it flared didn’t seem here—as to just whether up out,—there his shirt was I not see something was pulled showing, said, his told . . stop. I him to He T private. immediately ”; not done better let me alone’ he was then anything you about feet from him. He was fifteen or brow twenty up run, below; hill and then commenced to appellant appellant her; hurt remarked, “I haven’t the little wasn’t to hurt girl; I going I her down to her friends were.” witness said where The taking was then that he was together going ran stop at cost; soon after this the officercame and arrested up appellant. Eomine, E. H. testified he was constable, picnic Mr.

and saw there that that when he first him he day; saw crowd; this was after assault could, leaving fast walking was, the crowd near the after he towards where grand- gotten were day. stand. Mr. Eomine said: “I saw his face His lips it was lips, know whether something wrong I don’t bleeding; (on here don’t know along face). but he had a little blood whether face, from his the side of his lip, along was marked or just blood bleeding.” lip From to further of the evidence. We think state any unnecessary testimony, and from the whole of given what we have man, a grown to believe clearly appellant, therefrom justified crowd, friends and from the enticed little Leta girl her away distance, to a secluded hidden from her friends some considerable place, Reports. Texas Criminal [January, 76 her for the crowd, and assaulted from the purpose that her; she was a ravishing right intention young girl, inexperienced of that repel that she did all she could to unsuspecting; reasonably her and upon his assault that doubtless prevent help if the screams and calls for the little his accomplished purjjose oil came to rescue and had not attracted others who her ran girl doubt evi sufficiency think be no there.can her. We conviction, and, course, the court did not err dence sustain charge instructing jury peremptorily in refusing give special in found no case could be exactly point him. While acquit perhaps therein, be less, each more bottomed facts because case must, Crim. Ross State, Rep., 559; 60 Texas cite as in yet point, we White v. 60 Texas Crim. 547; State, v. State, 60 Texas Crim. Stewart Rep., v. 312. 92; 63 Texas Conger (cid:127) shows, substance, of exceptions 2. first bill Appellant’s that two later 1914; days herein was rendered November verdict allege any motion for trial. In motion he did filed his new hear- for misconduct of the The trial fixed November 14 judge jury. of the court, the motion. On November leave appellant, ing follows: time, jury, the first of the action of the complained this in this: “8. ease jury trying Because the misconduct to con- their retirement That said or some members thereof upon case, this counsel commented charge sider and after the argument upon behalf and of the defendant to own failure upon testify behalf, own his failure to character witnesses the stand upon place such witnesses such and failure testify considered failure place this ease. on the stand in at their verdict in arriving are to be charged “The set forth in matters the foregoing paragraph motion upon who this based signs true for the defendant counsel charge believe and they upon information and belief verily that such the facts. information and belief are down this this motion “Wherefore, this defendant set prays sub- for a and that each and in this ease be hearing, every juror sat under honor and poenaed before appear your placed court under these open rule and be examined counsel in this section of this motion. eight oath as to matters singly after fair full defendant “Finally hearing prays things do the same in award your motion honor all grant trial as in law he is entitled to have. him new King Hughes, & (Signed) Pillow, Jr., R. L. Attys. ‍​​​​‌​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​​​‌‌​‌​‌‌‌​​​‌‌​​​‌​‌​​​‍Defendant. Texas, “The State of

“County Galveston. attorneys “Comes Tom one of the for the Harry King, now record Calyon, above Harry styled defendant and numbered herein. his oath that- matters set forth in says cause paragraph Calyoüst v. The State. 1915.]

of this motion are true to the best of his knowledge, information and belief. (Signed) Tom “Harry King.

“Subscribed and sworn to November, before me this the 11th day

Patton,

“L. B.

“Notary and Public in for Galveston Co., Texas.” That on of the next one his day attorneys in the presented, person, trial judge carbon of his amended motion copy and told the he judge had the the filed with clerk for original and an asked consideration early of relating the misconduct the that a hours jury; few later he asked the if he had judge motion, read the and he stated that he had. Where he that upon asked he direct the to issue clerk process for jurors the that motion; fоr said prayed the judge stated that he emphatically do such that he would thing; do nothing of portion the motion the misconduct of the setting up that he jury; once for applied the clerk for each all of writing and process the naming them, but not what jurors, stating was, their avocation nor location; their that when this was presented clerk, the stated clerk that he would positively decline to issue the subpoenas, unless forced by mandamus; do so that on November when the motion heard, and his present, attorneys suggested he wanted to take the action of the court and up clerk in refusing for the process that none of the were then jurors; jurors attendance. present he in evidence, offered Thereupon, particularly, of his portion motion the file above marks the for copied, application process mark on file what happened transpired concerning motion and stated process for application amended above, then: offered the of Jr., “There then testimony Pillow, R. L. one of the who defendant, counsel of the stated that he talked to one who tried the of The State v. No. jurors Calyon, 17,019, docket of counsel, and that he had after such conversation furnished the who swore to the King, Mr. amended motion a new prepared for had, on file this cause information what tran now concerning Pillow, the said spired juror; between said and that the information received from juror to truthfully passed co-counsel, The defendant King. Mr. then offered of testimony counsel, he had one who stated that Mr. of Section 8 King, prepared new trial the defendant’s motion for information communicated upon Pillow, Jr., defendant, and that L. counsel for Mr. R. thereto information so upon his affidavit based he had made received. for court between the and counsel open “And State agreed being set out reflects truly herein foregoing 'defendant matters for motion the defendant’s amended concerning part situation defendant the jury, misconduct of trial setting new and refusal to the failure open excepted there in counsel then and Vol. 76 Crim.-7 Reports. [January, Texas Criminal the court this ease to the clerk court to issue trying direct of this set

process application herein out to the failure excepted n of this refusal of clerk court to issue process appli- cation herein set out even without the court for direction That misconduct of the been under oath alleged reason: jury having for new trial an in the motion filed herein and directed application made clerk of this court been counsel for the having compel defendant under oath for asking process attendance the date set trial to motion new the end inquired and said charged might into, the matters of made, been then in that event having application reasonably this court as for. process defendant was entitled prayed this his exception defendant now bill of “Wherefore, presents examine, asks that this court allow 1 and order approve, No. same the record in this case. filed as a part

“The bill of to me foregoing exception having presented examined the same now allowed and ordered filed as a approved, part November, in this This the 23rd of day of the record case. Street,

“Robt. G. “Judge of the 56th Judicial Dist.” in serious the case. The This presents only purported best of to the effect that: “to the King simply solely affidavit Mr. knowledge, said or some members jury information belief” of thereof, “commented the failure the defendant to in testify character witnesses upon own his failure place behalf such stand in his own behalf and considered failure to testify stand, witnesses on the in at their verdict arriving failure place case.” clearly no all. our this amounts to affidavit The hill In shows that Mr. whatever about the knowledge supposed King that not he did what his claimed jury; give misconduct of informa- who his was. Mr. one was, Pillow, nor did give tion informant to have talked one of the attorneys, who claimed jurors, appellant’s client, whatever. Neither their appellant, affidavit did made,no motion, appellant affidavit. On neither any hearing make Pillow, attorney, Mr. nor his Mr. even told who King, his attorney, nor did to have talked with. Nor that Mr. Pillow claimed was juror did had said them. tell what said Nor juror them or either of any they or excuse why pro- of them reason give any or either any show juror, any other nor in the affidavit of said or juror any duce affidavit, or or any or failed refused make other juror that that for that or requested that of them had been approached purpose to do so. W. case 75 Texas Crim. S.

In the of Hicks v. cited, stated some examined, quoted we thoroughly of the motion on this In that case subject. the authorities they for misconduct of the jury, alleging new trial complained v. The State. 1915.] lot,

arrived at stating their therein that was hy verdict “defendant believed, and that advised and the facts were the verdict so arrived at.” That to, signed motion was sworn attorneys. that heard

When motion was the trial judge hy eight members of court open and asked swear them jury permission whom defendant’s stated attorneys believed and “by informed, had been so that the arrived at they could verdict was prove in the manner,” lot, out; particularly set which refused to to be so sworn judge permit jurors testify, stating that “no the misconduct issue as to been submitted jury having court, was not to be sworn and its permitted impeach jury verdict, unfair which under facts of appeared impartial all the sustained case.” This court the action the lower court in case, case and held that the committed no error and judge affirmed which a conviction for murder in second with a degree punish- ment of nineteen years penitentiary. confinement The basis of of this refused holding the court properly to hear the them attendance in actual testify, although for averring because motion purpose, attempted pleading anyone said misconduct of the was not sworn to by appellant case, him. In while there is a affidavit, really is not purported fact, effect, so and is in no affidavit whatever. case, authorities, In cited, the Hicks other among we approved P., & as follows:

quoted P. “When Ency. p. the ground trial consists facts matters not record, new of extrinsic such as ... . . . irregularity jury, set method is to forth the facts affidavits in proper support P., . motion. . .” also cited, We approved Ency. 1 2 P. & quoted . . 557-8-9, follows: “When moves for a new trial pp. party trial, of misconduct which occurred he must ground during aver that and show both he his counsel affirmatively ignorant of until trial. charged the misconduct after the "An ground a must application new trial on the he for of

supported as hy affidavits facts. “An trial affidavit to secure a new on account the misconduct of a must out the facts irregularity. set juror clearly constituting alleged he as "The should well should he positive specific, as affidavit hy merely sustained oath and on founded information belief.” And in that said: can sort of case we further “We think there be no authorities establish, beyond doubt but that order question, these attacking for to have considered motion appellant itself, that, the verdict matter extrinsic record it must or a matter of he its own affidavit by pleading, support affidavit the truth showing grounds of someone else specifically of attack. And it is not so sworn supported presents the lower court to consider or it.” investigate requiring trials, felony,,

Our statute C. C. “Hew in cases of says: (art. P.) . . causes, shall be granted for the no other: following for Repobts. 100 76 Cbimistal [January, “8. misconduct of the Where, from the the court is of jury, a fair the defendant has not and impartial trial; received and it such misconduct shall he affidavit competent prove voluntary a manner, and a verdict like in such may, cases, be sustained juror; such affidavit.” This court has all that in affidavit a time held an for continuance believes,” which states that defendant “is informed and out setting what the witness is swear, absent will insufficient. v. wholly (Labbaite State, 6 Texas Crim. In the recent very v. App., 257.) Byars State, December 9, decided wherein claimed that appellant court erred in for continuance and wherein refusing application witness “so defendant has in swore what been testify formed,” court, said: “It will be noticed through Judge Davidson, not stated, that the facts to be are infor expected proved except upon nowhere, it, mation. nor attached to shows Appellant application, he received show from whom such information. If attempts ap the absent been informed witness would pellant testify indicated, been his‘'source should have stated and information verified.” So it-has all the time been held this court that in such application that the continuance mere statement has used due dili insufficient; witness is gence wholly obtain the the application must set out what is so can tell diligence therefrom State, has whether or not the beеn used. v. diligence proper (Henry State, Texas, Cocker 306; 38 Texas v. 31 498.) Crim.

So has all the time held our Court that an Supreme must state facts on which the affidavit for attachment positively it is information attachment and that when stated sought merely to authorize sustain an attachment. belief it is insufficient wholly Texas, Totham, Schram, Texas, 189; 59 Dunnenbaum v. Sydnor Texas, 281; Stewart, Lewis v. material Cyc., 25, allegations

In it is said: "Where are made the source of information information and belief belief grounds statement given out a good positive should be reason why set could not be procured.” through 41 Texas

In Black v. Davidson, said: Judge H. new is the affidavit of George to the motion for

“Appended Giddings, firm of that he is a member of the & Giddings, stating Gulp in his own behalf testify that defendant did counsel appellant, Holman, return the verdict talked subsequent discussed some of the jury informed one of the who jurors, out their verdict. deliberating while testify, defendant’s failure facts, the showing an affidavit that he prepared He states further could to do so until he it, he declined but sign Mr. Holman requested inquire a made that the court request his fellow jurors, see He affidavits.” filed Hone of jurors matter. truth of the into the on this statement of facts ques- abe what purported then shows that consid- reason could not be for that time and term after tion filed 101 1915.J v. The State. stated,

ered, and concludes the “For reasons opinion saying: hy a alleged what is set out as statement of regard we believe facts not be nor the considered; can affidavit of it is not because states even attorney appellant, fact, supported " his informer affidavit Trials it is “That In 2 said: Thompson pre- sec. (2 ed.), all conduct, attends official extends to sumption right which acting rule, only as a can and, the conduct of this general presumption juries, be trial not overcome clear A new will be satisfaсtory proof.

granted fails to make out a fair presumption where evidence The establish the of misconduct. evidence guilty The an statement by misconduct must be clear and mere positive. the same be said nothing; may impressions counts affiant of for least unless such' made on information affidavits belief—at information, discloses whom acquired

affidavit affiant such can be had" then must appear why person testimony of this, Court, and our Supreme It has been held always testimony, on account of discovered new trial newly for applications shown good affidavit new must cause of the witness produced, be State, State, 260; is not 4 v. Texas, Campbell done. Cotton v. why State, Texas, Texas Texas, 490; 147; State, 40 West v. 2 29 Cole v. State, 501; Polser 209;

Crim. Love Texas Crim. v. App., v. 3 App., State, 6 510; State, 6 v. Texas Crim. App., Texas Crim. Evans App., from another alleges 513. the.affidavit information derived And if disclosed, affidavit be the name of such other must be and his person, State, filed for. v. want of accounted Williams Crim. 163; number Any Blake v. 3 Texas Crim. App., State, App., unnecessary. cited, to this it is cases effect down to date could be but affidavit is to the effect Eo can found to the When the contrary. be and is affiant, affidavit hearsay,” some other ‍​​​​‌​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​​​‌‌​‌​‌‌‌​​​‌‌​​​‌​‌​​​‍told “is purely State, 611.) 48 Texas wholly insufficient. v. (Tyler Dignowitty our jurisdiction, When Court criminal Supreme a new it said: “The State, Texas, application v. p. manifestly of the trial affidavit resting party, on the unsupported the counter insufficient, impaired its not been force had though de of the matters contrary, affidavit appearing by anything the accused.” posed by said: Texas, 479, In our Court Supreme Jordan of counsel made the mere statements “This court can notice 502, said: “In further, on trial.” And page

their new motion competency, of the only court motion, may judge, considering the might where be of evidence. There cases effect- injus- trial, of the if, presiding judge, well new grant re- while, time, new done; at the same should tice reversing judgment. fused, would not be warranted in -court much more at the trial afforded better judge presides who than revis- application means of merits ample judging ing. therefore, action governing rule it is court can be. And. amua/ry, Reports.

102 Texas Criminal 76 \J of affirmed and enforced repeated decisions, from the earliest cases the to the upon subject time, to reverse the present of judgment trial, the District Court unless refusing new some prin- of ciple violated, law has been disregarded, misconceived or or is prejudice reason to good party, apprehend injus- done, tice had been District refusing application. Though the discretion, in its Court, upon application accused, might case, trial, granted if, new from the evidence and circumstances of the were in his they apparent judge, opinion, ends presiding of substantial it.” justice required As said Davidson in Gordon by Judge State, v. 29 Crim. App., 410: will matters “Hothing indulged be favor such (purported affidavits) they operate as an attack of a court upon judgment record, the end be set aside or vacated judgment appeal. must -and be Every indulged will presumption by appellate courts, A and sustain of trial courts. uphold tending judgments must party attacking judgments make it sufficient apparent State, error exists to set aside annul them.” See also Morrison v. cited, 519; 39 18; Texas Crim. v. 71 State, Shutt S. W. stated said case, Hicks quoted supra. Bartholow, Kan.,

In Atchinson 124; Thompson Higginbotham, v. 4 v. 42; 18 Kan., etc., 360; Williams, v. 9 v. Morgan Boord, 24 Nev., People 31; Iowa, Tarm Cal., Stucker, 86 People Poi, Cal., 225; v. State v. 58 496; Ind., 339; Andrews Stanley Sutherland, v. Ohio R., Cir. it was held that affidavits must and when Ct. be positive, made on information and beliеf insufficient should not wholly be considered. law

Our C. C. and it prescribes P.), was administered (art. case, “You, in this this oath: each jury solemnly swear you, Calyon, case of the State of Texas the de- against Harry fendant, will a law you true verdict render according evidence, so me God.” help

In this case the court told the after them expressly jury, telling judges exclusive witnesses and credibility their be are bound to receive the law weight given testimony “you from the court and In them thereby.” told governed addition, “the failure of the defendant not be taken as a testify shall circum- stance nor against him, shall same be alluded to or commented retirement.” by you your

Ho each doubt this case was every juror fully completely dire taken, wholly tested on his voir before he was each were disinterested, without entirely impartial fair, prejudice light bias is no to treat against appellant. as violat- thing it is their solemn oaths. When be done an ing attempted accused conviction, after certainly more than a affi- something mere purported attorneys davit one of effect that “to appellant’s best knowledge, belief, information and my thereof, some members commented the failure the defendant to testify, his failure v. The State. 1915.] stand, witnesses place character and considered matters,”

should the trial be to authorize to required judge summon them before him and answer to such were not charge. They on trial. The accused was.

Let us further consider the affidavit of Mr. purported King, one of appellant’s attorneys. It to simply solely this effect: “tg of my knowledge, belief, best information and or them, some of commented the failure the defendant upon of to his testify, and upon failure to witnesses place upon character in his own stand behalf and considered such to failure to testify and such witnesses on place arriving in their This stand, verdict.” states no material positive fact in whatever. He stated had any knowledge on the sub- When the trial ject. thereon, heard the motion judge evidence it was shown that Mr. had no King whatever. knowledge did state his information,” “to the best of states my no material information fact of even Hor did he state who informant was, nor information. ¡Nor the information him. given did he state an he did not why attach affidavit informant, of his nor that his informant refused to an make affidavit. thereon, When the trial judge heard the motion evidence Mr. swore “that only: he had King section 8 of the defend- prepared ant’s motion trial for new upon information to communicated him by ¡R. Pillow, Jr., Mr. L. of defendant, counsel and that he made his affidavit thereto based such information so received”—simply that and more. nothing On that same said hearing Mr. Pillow swore “that only: he had talked one of the jurors case, who this tried had, that he after such conversation, furnished counsel, Mr. King, who and swore prepared to the amended motion for new trial now on cause, file in this information what concerning had transpired between Pillow, the said and the said and that juror; he had truthfully passed the information received from the juror Mr. co-counsel, that and King”—simply more. nothing We are ask, impressed did not why Mr. of Pillow himself instead King, make the Mr. affidavit “to purported best Ms knowledge, ¡Nor information and But belief”? he did not do so. did he on said even tell trial who hearing judge juror who “talked” to him, nor what the “information received from the was, why nor juror” the affidavit of said get what juror this “information” was. ¡November juror “talk” This with him was on or before 11th. The ¡November14th, on the motion hearing later. days three There can be no doubt most, if not all the case, City in this jurors, lived Galveston, and еach and all them could have seen and been “talked” to one or other, both appellant’s attorneys, himself, fact, appellant if there foundation, for such an attack on verdict, their or all some of them would have made an affidavit Or, at'least, attorneys effect. of his or one appellant could have shown them they applied to for an affidavit refused to make one. The “it such statute shall be says, competent prove voluntary juror.” bv the affidavit slightest of a Surely Bepobts. anuary, Texas Cbimiital \J attorneys would be call

diligence jurors affidavit, at least them a refuse an chance give such make instance, this not, one. are the first as in ease was They make court under “placed sought, up by process be jerked counsel and Mr. examined these (Mr. King rule and be under oath as to the matters Pillow), open singly Section motion.” -affidavit and what is disclosed the record If purported held to require judge in this case be subject should treat subjected them to summon the be said require case, flood-gate “what then, supra: as we the Hicks ment, be turned loose. Verdicts would ‘fishing’ drag-net mere mere case, lower if such judgments into trial be converted courts for the farces. The trial courts would And see on not of accused.” further said opinion an jury 766, which this this is case. applicable 171 W. subject, Rep., S. learned eminent, just judge, This case was tried before the each all doubtless knew Street. He personally Robt. G. all and heard the saw jurors; trial, witnesses, he heard the whole saw the and Imew that attorneys and. the maneuvers of the appellant the trial, and under a fair and all impartial had received committed circumstances, proper judgment facts and exercised that vio the attacking having and as no basis fоr as there was trial. oaths, the motion for new lated their overruled properly statement, as a preliminary 3. charging jury, The trial judge, article prescribed by defined as things, rape generally other among threats therein Code, such definition as included Penal and included in for a submitted the case to the jury and in article but when he based on force and did not submit exclusively he submitted finding it, it would for threats. While have anything proper about all the threats, it has to have left off as the definition of rape, rape by ai to the for jury this court when he submits time been by held statute indictment, the offense authorized finding only by State, is Railsback 53 no reversible error committed. v. evidence, 273; Jordan 542; 58 Texas Crim. State, Rep., Crim. v. Reynolds Rep., State, State, 178; Keeton 59 Texas Texas Crim. v. Rep., W. Texas Crim. 160 S. Matthews v. 316; Rep., the court charge Therefore, appellant’s objections no error. ground presents other to the of the court objections charge present 4. Appellant’s effect: They are to the are too to be considered. general error and the law apply main and refused charge in the failed (1) testimony; developed by (2) to the facts the case affirmative any charged court in main nowhere charge, in the only testimony; place defense developed by (3) n find is will you main an “otherwise acquittal court’s charge authorizing the defendant not guilty.” our does the law to the fact's

In the court’s charge apply ms:\ v. The State. facts the law states apt, applicable charge developed this, Besides objections. of these not subject any of the case and is charges except requested, all special

the court gave appellant’s embraced another, because it was acquit, which was peremptorily if аnd it so embraced. So that main charge, court’s fully main it was issue the court’s charge, omission any request. at charges given appellant’s special covered case from the evidence “If believe charge you His No. 2 is: together on the creek that the the defendant away went prosecutrix in sexual inter engaging of each of them purpose part or to such act, in said while preparatory course and that while engaged act, thereupon and that they were come some third person de efforts of the resistance to the prosecutrix the first time offered she, intercourse prose fendant the act of sexual consummate of the defendant cutrix, from the embrace hold jerked pulled away from if entertain act, you ran the scene of the from screaming facts, this state of as to evidence reasonable doubt the existence ” verdict, guilty.’ will ‘Hot you your defendant and acquit say by the evidence And his from 3,No. as follows: believe charge you “If Beta prosecutrix, submitted you consented to Tinnin, time after she met the defendant sexual the indictment alleged intercourse with him on the day thereafter the defendant her consent was earn7 attempting dis out the so her and consented proposition previously parties act and the defendant thwarted third covered a reasonable out act of intercourse. Or have you sexual if carrying alleged doubt at as whether or not these facts existed the time crime, say by your then will the defendant and verdict you acquit ‘Hot guilty.”’ evidence from the

And No. “If believe charge 4, follows: you dance pavilion that the left the this ease defendant prosecutrix at indictment and went for Thayman Park on date alleged creek; stroll of about 100 down the a distance yards that after reaching sat down from the dance the defendant and pavilion prosecutrix to while «together on the of conversation the purpose attempted away the the defendant time, sitting that while there kiss the at the hands on her time breast prosecutrix put that although her in an her effort fondle leg merely person, her for several pull minutes he never time any attempted pulled dress her have sexual over head and never at time made effort to will you intercourse the said then and in event prosecutrix, verdict, guilty/ you the defendant ‘Hot if acquit and say by your reasonable as to not this is doubt whether or what happened you will acquit the defendant. This even though you may believe defendant right to fondle the person prosecutrix or even though you believe her fondling person was without her consent.”

5. At Tinnin, first the court Mrs. Mr. and the father and permitted Reports.

106 76 Texas Criminal [January, mother of girl, as to the testify condition of her dress and appear ance when she reached assault, home after the which was about two hour's after the assault. This evidence was clearly admissible under all of the authorities. State, v. 40 Pefferling Texas, 487; Lawson v. State, 17 Texas Crim. 292; State, Roberson v. App., 398; S. Rep., W. Lights State, v. 21 Texas Crim. 308; Grimmett App., State, v. 36; App., Conger State, Crim. v. 63 Texas Crim. 312; Rep., Sharp v. State, 68 Texas Rep., S. W. Rep., other many cases. The length time after the assault alleged the weight goes and not the of the evidence. admissibility Besides, the court excluded this evidence Miller expressly by charge. State, v. 31 Texas Crim. 609; 74 Texas Crim. Rep., Martoni 167 W. S.

The record presents no reversible error the judgment will be affirmed.

Affirmed. DAVIDSON,Judge.I can not concur and write on one or more of the mentioned in the questions opinion. Judge DSON, DAVI (dissenting).—Appellant was convicted of as- sault to I deem rape. into a unnecessary go statement of the case I do facts, though not believe the statement of the evidence as set out in the is as clear original as it full should be, and in some not, think, respects consonance with the record.

I more than seriously sufficiency of the evidence to sup- port this conviction. is shown on the motion for new trial appellant raised the issue of misconduct of the jury. This motion was set down for hearing by court, asked that the jurors be sum- moned to The matter testify. set out in the motion was, for new trial in their retirement jury commented on the failure of defendant to testify behalf, in his own and also to character witnesses place the stand behalf, in his own and that considered such failure to as well failure to testify the witnesses place regard the stand to his character. This is signed counsel, and ther sworn counsel information and belief. Process was'asked the jurors to be into brought which judge promptly peremptorily affirm, refused matters not grant. these are My holding brethren error. The grant statute the court shall things, other provides, among course, a trial it must in some new Of upon of the jury. A way be material or did. jury, of the or affect the verdict probably comment is reversible error. testify failure the defendant raised room, It not be having except in the could occurred jury on,the commented motion for the new trial. further fact also reversible. is failure of the witnesses defendant to character produce the jury before The State would to introduce not been have permitted char- to produce evidence of the to testify failure the defendant "competent” is acter that it witnesses. It statute also is the by provided v. The State. 1915.]

to show this the in by affidavits the of this motion. jurors, support This was not done in this the case, but it was called to the attention of court under oath had in by attorneys formation believed matters the information be correct, these had occurred. this the court Upon have issued the showing ought at the process of the defendant for them request jurors before the court. The statute article Bevised provides, 841, Code of Procedure, 1911, Criminal follows: “The State take may issue the defendant in truth causes set forth the motion for trial, new and in such case the shall affidavits judge by hear evidence or otherwise and It determine issue.” not will seen that be filed, that the affidavit of in necessary be jurors fact under statute is not an affidavit be at all in required filed regard The court hear matter. this evidence than otherwise affidavit, been, it has until the recent case of Hicks State, v. case,

the instant court rule the trial could hear it either This State, the statute so in held Richardson v. provided. State, v. 31 Texas App., Crim. Crim. Kelley was, State, It also held in substance, Maples 60 Texas Crim. Rep., 63 Texas in Patterson v. 297. The writer Avrote in Maples case, Prendergast opinion Presiding Judge case, Avrote in the Patterson opinion length quoted it as In the Maples case, citing authority. Maples is shown that one of counsel in the case took the affidavits that were filed. the line of authorities cited Following held opinion, court and could not illegal these were be considered. That has

rule in Texas in its After so and the history. holding affidavits passed case, out of then this used: language would not “We reverse this case alone for the upon this reason proposition testified; court and into

brought but, prevent the happening trials, matter future we taken it decided it. has (This affidavits above illegal reference to our mentioned.) statute Under а new may decide motion contested issues means of affidavits Of men- testimony. course, the affidavits by hearing such as be tioned the statute means taken. can An affidavit legally taken not administer authorized to party particular oaths not affidavit, and, therefore, transaction would constitute a legal objection.” This was testimony basis of cited quoted.and case, in his Judge Prendergast the Patterson Presiding supra.

From the Bichardson make this “We are case, supra, I quotation: even as to infor judge satisfied propriety privately seeking Such mation as to matter of fact before him for decision. pending statements are His decision hearsay, and are evidence. legitimate on the motion for has new trial ‍​​​​‌​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​​​‌‌​‌​‌‌‌​​​‌‌​​​‌​‌​​​‍should based the evidence he be art. Proc., supra. heard or otherwise. Code Crim. hy affidavit must be before hearing evidence testified sworn to on can where of knowledge and means statements, credibility, the witness’ unsworn fully independent, ascertained. Ex legally parte, Reports. anuary. Criminal [J statements not he allowed override state- should defendant’s sworn if ment. he 'deemed have judge might, called Crane’s proper, or had reason to father to the stand if he knew believe that said any issue, thereby Crane knew facts the important pertinent the right subject have and his statements to given.defendant evidence, tests to witnesses their he had legal if applied generally so desired.”

In “The Kelley’s case, the court said: State filed controvert supra, issue, affidavit but the court heard evidence in rela ing contesting tion affidavit. This action of the thereto without such controverting first, it do think court, is is erroneous. We because contended, so; manifest from discovered, was not newly the testimony is and, because court authorized hеar evi affidavit; secondly, secs. Stats., without affidavit. Willson controverting dence 2552, 2554” all testimony a rule which excludes

The statute does not prescribe filed, try that and the court may affidavit. Affidavits except may be by affidavits, is on motion for new trial on the but this question it rule, for the statute be done “otherwise.” only provides expressly may legal “otherwise” avenue is for court opens The word up any by witnesses determine the evidence. be may hearing it There are ways be record evidence. affidavit, may many is character of evidence, which reached testi- proof through not; it admissible, it the issue is or whether mony proves proves issue, if it it is admissible. T'o say sustains or tends sustain the account of misconduct of trial, issues on motion for new affidavit, only supported by shall tried affidavit or when jury, be sets is a of the statute infringement plainly clear and overruling fact, In at naught express Legislature. procedure provided by safer court, cited, indicates that the better and perhaps look would rule be have the witnesses before the court not. the truth or them, hear them and whether are telling know affidavits,—not so, but only This could not be done if tried only upon 1, section Constitution, wherever an is article issue to be tried the for process shall compulsory that the defendant expressly provides witnesses, for the witnesses. In this instance he applied process it. There was no the court refused to grant peremptorily him to order of get the matter before court except by come, unless, course, but they the witnesses should voluntarily the theory appear. suppose judge proceeded that'was Whether juror not be to attack his verdict. permitted was, then discuss. If it or not here to holding unnecessary provided statute set rule when expressly abrogated aside and show to use the affidavit of a “competent” juror statute our one or more of that have another rule We body. which of this has majority been accorded high standing is, Code occasion, more than that the provisions objects Criminal to obtain liberally Procedure shall construed v. The State. 1915.1

purposes of the Code of Procedure. This have Criminal seem to they applied harshly for the but very liberally critically very against the defendant. The to statute above referred did not for apply exclusively, State but applied generally procedure practice prescribed anything Instead of this by Legislature. giving or a fair construction, like a liberal even that in brethren held my by face of the statute tried which these issues be provides may This otherwise, affidavits or can be affidavit. only decided by laid out with as seems of the State harmony jurisprudence be do itself. I down cited as well the statute already by opinions clearly not this matter further. The defendant care follow and if entitled to those matters investigated by have a new trial would so he should have been awarded testify testify, on their comment on the failure of the' defendant only also on fact he did against produce which used a dissent some extent in in the Hicks character witnesses. I wrote to addition, this to what These are case, and I write I wrote. dissent. of the reasons I file this why

some March Judge Presiding (additional PBENDEBGAST, opinion).—The herein, record, Judge were turned over to original opinion 26, 1915, January investigation Davidson at his for suggestion, clerk turned them over day and examination. The next handed with this endorsement on the be down opinion dissents,” and with at the foot “Davidson, Judge, opinion, write on one more concur, can not “I opinion, Davidson, written Judge,”—all in the opinion. mentioned questions opinion. he filed his Neither dissenting him. On February thereafter called our stenographers it until one of us or knew saw thereto. attention into a state- statement, “I deem unnecessary go

To his opening the statement facts, do not believe though case on the I ment of is as clear and full as original opinion as set out in the the evidence think, in with the not, is consonance be, respects should some and original he took the record record,” Although to say: we have n opinion was handed examination before investigation time, original opinion before the and at.no stated, way, he in no down, intimated down, suggested or complained, handed was announced and original opinion the evidence statement us, the record.” not "in consonance it was nor that full, not clear open handed down in original opinion He was present had had made notv his complaints us if any court. occurs attention our have called way, in some then merit, he would slightest omis- either us of error and there had been had, thereto. If he filed Appellant it. corrected commission, sion we gladly complaint, Judge David- rehearing' making nor does no motion for Beports. Criminal anuary, \J son out attempt any. The statement point we made was “as clear and full” as could made from the evidence in record. In no par- ticular statement made us is “in which consonance with the record.” statement Every us, every respect, strictly “in consonance with the record.” fully To his next statement, “I more seriously sufficiency than of the evidence to support conviction,” say, we have nothing that a of twelve except disinterested competent, fair, impartial and men, after all the witnesses and their manner hearing testify- seeing and full ing hearing argument attorneys sides, for both by their solemn said oaths, doubt,” a reasonable appellant “beyond guilty learned, fair, all, a trial who also heard impartial just judge, also so said. We reached the same conclusion careful study the whole record.

In the remainder of his Davidson not opinion, Judge us criticised for this case because trial reversing judge refused to summon the jurors “that be under the require they rule and that be exam- placed ined in court under these counsel oath as to open singly” whether or not oaths violated their and were guilty some case,” in statement in “trying bare by appellant’s attorneys their trial, motion for in effect, new not “that by anyone, sworn said or jury member thereof” might some have violated his oath. Davidson contends in his that

Judge 841, as article opinion, Code says, Criminal "the take Procedure, State issue with the defendant upon the truth of the causes set forth in the motion trial, for new in such case the shall hear evidence judge otherwise, affidavit or issue,” determine affi therefore is not restricted to judge true, davits but can hear evidence “otherwise” also. Certainly this is case, and we did not in this hold nor in the Hicks case Rep., S. W. (171 case, nor in our other this could not be done. Nor can 755), any case, case, in this opinion other, the Hicks or tortured into be any that it could'not be. holding

In case, order make the clear in the Hicks in the original point we what the trial opinion, as the reason he refused quoted judge.stated to have the who sworn in a testify, separate present paragraph, as follows: “Ho issue as to the misconduct of the hav jury been submitted to the ing- sworn jury permitted be its impeach verdict which unfair under appeared impartial or all facts of the case” S. W. what (171 Rep., 757), applying judge so said to the on “Thе facts we stated: question, specifically of the motion ground for new was not sworn to by appellant or anyone else, and affidavit of supported by independent anyone Judge whomsoever.” thenWe cited and what (P. 757.) quoted Harper said in Bryant State, 65 W. Crim. 153 S. Rep., Rep., as follows: “It has held, matters always extrinsic the trial, record sought are to be in raised the motion new such should grounds verified in be the affidavit of Then appellant.” opinion rehearing case, Bryant in answer to appellant’s Calyon v. The State. Ill 1915.] complaint he had failed to find case, any Judge Harper said: “If he will read Barber v. 35 Texas S. W. 649, will find a case so and this holding, has always been rule.” Judge Davidson himself opinion case, wrote the in said Barber and said: motion “The for new trial is not sworn nor to, does affidavit counsel, appellant, motion. This is accompany in no sense law. . compliance Judge Davidson was present participated agreed Judge Harper’s opinion said Bryant ease, original both in the and that on opinion rehearing. in the Hicks Again, we demonstrated rehearing, the only we were considering, discussing, deciding on that was that in order to the lower point, require court to hear evi- dence, all, whether affidavit or otherwise, it essential absolutely motion for new trial attacking verdict on ground dehors the record, to he sworn to. After authorities citing clearly quoting so establishing, distinctly separate we said: paragraph,

“We think there sort of doubt can but that these authorities establish beyond in order for question, that to have had con sidered his of motion the verdict of the attacking matter extrinsic the record itself, matter as a he must pleading, sup it by his own port affidavit, or affidavit of specifically someone else truth of showing the of attack. grounds when it is not so And sworn to or it supported, the lower presents court question requiring to consider or investigate it.” S. W. (171 Rep., p. 763.) our Again, case, in in this we opinion distinctly state: “The basis of the this court that holding was, in case that (Hicks) refused to hear the and have them properly in although testify, actual attendance for that because purpose, attempted pleading the motion said not sworn to averring jury by him.” anyone for All this is made so clear plain, in all said that he simple opinions, who runs read and not err therein. that So can see anyone when Judge Davidson in his herein opinion says: “The court dissenting may hear this been, evidence ‘otherwise’ than it affidavit, and has by until the instant Hicks and the rule case, the recent.case the trial court could hear either way, as statute provided,” he is subject, all else uncalled for and says has no wholly what whatever to we said or in either application decided this or the Hicks case. is evident from a casual or perfectly opinion, careful of his reading

he misconceived the wholly question. We discussed and decided whatever, to admit evidence whether requisites a-proper pleading “otherwise,” affidavit or both affidavit by otherwise, does not discuss that at all, else. He hut does discuss nothing of evidence character which be admissible when the proper filed. pleading had been His us in his animadversions upon dissenting opinion, wherein

says given we have more than one occasion to high standing the rule Reports. Criminal [January, of our statute procedure shall requiring construed, liberally and that “seem we to have applied rule) (that very liberally State, but verjr against critically harshly defendant,” calls some attention on He our refers part. evidently to our holding of the motion herein ground аttacking case mis- jury for conduct was not so sworn to as to properly require the to have judge summoned, sworn, etc. jury We himself, will let answer in this respect, of his own

recent decisions. We refer Hampton v. State, 63 Texas Crim. Rep., 100. He wrote the in that opinion June a few months after our accession to this court.

The official of that report case does not state what the fourth ground of the motion for was, new trial nor did Judge Davidson state what was in his it “is verified in holding and can not be considered other than it 'alleges misconduct’ generally jury.” case have at all papers times since then been on in this file court and now are. We have them and will state procured fully said fourth quote “swear at literally ground and the it” appel- lant therein. In order to make clear the reference in said fourth ground words, “in to these connection with the foregoing,” we will state of the third ground what is evidently substance referred which said words. made a motion for trial. Hampton new In his third he com- plained refusal to judge’s withdraw district jury the attorney’s closing argument pointed wherein referred at, and defendant as “this bully” connection remarks that with his defendant miles to eight come 'the picnic, unlawfully with carrying pistol, murder his heart and was looking for trouble. Then his fourth‘ ground was:

“4. In connection defendant further foregoing, would show that while the jury verdict, its deliberating upon and before verdict was several reached, members discussed the character defendant; reputation several of he, jurors remarked a defendant, was mean looking negro; he had the appearance of a of one of being bully, and who knew inquired jurors, the de- and lived in the section of the not fendant same whether or county, defendant was shooter and a gambler, crap bully, to which said juror replied, of other that he knew presence hearing jurors, about about, the facts he had heard nothing personally inquired shooter, that defendant was a gambler defendant would crap show of the to did prejudice conduct was calculated jury the defendant in the minds defendant jurors, thereby Defendant would not receive a fair trial. further impartial show that his in issue in This motion character was not the case.” put his Mcllwaine and Robertson. signed J. S. Sawnie attorneys, was then “at” as follows: sworn Hampton, defendant, sworn, that the

“Dock oath duly says on Hampton, being v. The State. 1915.1

matters and facts and foregoing set forth in the above 4 of paragraph motion are to true of the best belief. knowledge and his Defendant.

“Dock Hampton, October, “Subscribed and sworn to this 15th before me day

Beaird, “Pat H. Texas.” County, “Clerk of

(Seal) the District Court, Smith Judge Davidson on insuffi- based his opinion solely point ciency of the motion and fourth it, swear at “The and held: of the motion for in alleges new trial their retire- ment in reaching their verdict. This is in any verified can not he considered(Italics ours.)

A casual, mere or a careful, most this and reading comparison case will show can Comment Hampton distinguished. is unnecessary. Our in the Hicks case was down original opinion handed November

26, 1913. Within fifteen thereafter Hicks made motion for days We the case rehearing. held under consideration a under time long motion, Davidson would his expecting Judge opinion write dissenting therein so we could it. have the benefit of But he would finding it, 1914, write 4, March down the rehear- we handed opinion ing. Judge Davidson did not file therein until dissenting opinion 21, 1914,' December from thereby withholding opinion publication till 20, the issue January 1915, advance sheets of the South- western it, A ¡Reporter. opinion and our therein will dem- reading this, that, onstrate he misconceived the clearly as well as case. We written about the Hicks case because paragraph as a tail herein Judge Davidson added dissent this: “I wrote some case, extent a dissent the Hicks and I in addition write this to what I wrote.” find no Evidently could back his dissent authority 26, 1913,

November the original opinion rendered, till Decem- 21, 1914,—one month,—when ber one dis- year he filed his nearly then nor when he senting therein, ‍​​​​‌​​‌‌‌‌​‌‌‌‌​‌‌​​‌​​​​‌‌​‌​‌‌‌​​​‌‌​​​‌​‌​​​‍February since herein,—an his dissent additional two nearly year filed time months, none cases are or statute cited point support dissent. Judge

DAVIDSON, some degree regret I feel (dissenting).—With few remarks in Judge Prendergast’s called make a reply Opinion” “Additional

Judge refers two in which I honor Prendergast cases write and Hamp Barber v. 35 Texas State, opinions, ton 63 Texas Crim. 100. The correctness of those opin ions think and their this case debatable, inapplicability hardly for also In the Barber there was a motion made beyond question. case trial, unsupported testimony, on a new to bv affidavit or offer adduce Vol. 76 Crim.-8 Reports. [January, Criminal brought there testimony, discovered was ground newly nothing

to court informed of the attention of the court which the was by a statement in the motion for testimony discovered mere newly except trial. There to testi new was no offer defendant support by in no offered it mony, and evidence to is stated effect, besides newly itself cited, that the alleged volume page Ann. evidence. discovered was White’s testimony simply impeaching C. All P., 757, C. for cases. lawyers impeach sub. understand p. testi evidence is not within the rule of discovered ing usually newly authorize trial. In the mony, does new usually granting alle case, no Hampton was verification of the supra, attempt in motion trial of the gation for new misconduct part nor jury, was there offer to evidence support produce motion. as ground The matter motion. presented merely There was no for for witnesses. In this case an affidavit request process was filed The information counsel. affidavit was based without de generally, belief the misconduct occurred. I state tail. On affidavit affiant request of information and belief of the statements made of the court for to to jurors process bring verify sought made in at least was regard jury; The so the trial testimony obtain their This court refused. prove. can instant the Barber case not be Hampton authority case, the statute of the motion can be especially provides grounds otherwise.” It undertaken heard tbe on “affidavit or regard the court to hear the get jurors testimony before case, the affidavit of counsel in the misconduct of based on jury, cases, Hampton was refused. In the Barber and there was supra, which made evidence any way get no affidavit anybody attempt the matter was left alone on the simple before court. In both cases trial. for new statement motion necessary. not, of believe in this case an affidávit was course, I do have ought could as before the brought The well been affidavit on information and cer- The belief have been produced. Such to be sufficient basis for for witnesses. process ought legally tainly statute. and is for a criminal under the prosecution affidavit can be basis if 2, and for Code, 1911, sub. note cases. art. Certainly Penal affidavit, conviction of the can be based citizen etc., bring sufficient ought to be belief, amply information trial. witnesses has not had a fair impartial accused prove have witnesses in accused compulsory obtaining shall process his conviction directly favor. art. Const., sec. The legality it. and he issue refused put testimony prove “Addi- Prendergast’s this in Judge I would not filed reply the fact that the two cases he cites have Opinion” except tional fairly construed or treated.

Case Details

Case Name: Calyon v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 27, 1915

Citations: 174 S.W. 591; 76 Tex. Crim. 83; 1915 Tex. Crim. App. LEXIS 312; No. 3392.

Docket Number: No. 3392.

Court Abbreviation: Tex. Crim. App.