157 S.W. 758 | Tex. Crim. App. | 1913
Appellant was convicted of incest with a penalty of four years in the penitentiary.
As stated by appellant's able attorney, there are but few questions to be decided in this case. The evidence of appellant's guilt is clearly sufficient to sustain the verdict.
After the State had introduced its proof clearly making out the case against appellant, in order to defeat the State's case and show that he was not legally married to the mother of the complaining witness and thereby show that she, in law, was not his stepdaughter, he introduced a properly certified copy of a marriage license from New Mexico with the return thereon showing that he was lawfully married on March 3, 1901, to Miss Amer Harvey, and rested. The State, in order to meet *267 this, introduced appellant's fifteen-year-old son, who testified that his father called the name of that wife "Armor." The State then introduced, over his objections, a properly certified copy of a divorce decree from the District Court of Hopkins County, showing that on August 27, 1907, appellant procured a divorce from Armor Cowser. His son also testified that his father moved from New Mexico to Hopkins County, and was living in Hopkins County at or about the time this divorce was obtained by him. He made no objection whatever to the testimony of his son. The court, in approving his bill to the introduction of said divorce decree, qualified it with this explanation: "The witness testified that he knew his father's wife as Armor and that his father called her Armor; that defendant moved to Hopkins County, Texas, and lived there and that his wife did not go to Hopkins County with defendant. The divorce was granted in Hopkins County, Texas. The court admitted the decree after the witness had testified as above stated and in the charge submitted the question of the identity of the parties named in the decree of divorce with defendant and his wife, Amer or Armor, see charge of court." The court charged that "the essential ingredients of the crime with which the defendant stands charged are: First, the legal marriage of defendant to Mrs. A.C. Turn (Mrs. Turn was the mother of the prosecutrix by a former marriage). Second, that defendant while so married to Mrs. A.C. Cowser (formerly Mrs. Turn) had sexual intercourse with Agnes Turn. Third, that Agnes Turn was the daughter of Mrs. W.H. Cowser by a former marriage. Fourth, that at the time defendant married Mrs. A.C. Turn, if he married her, her husband, A.C. Turn, was dead. Fifth, that at the time defendant married Mrs. A.C. Turn, if he married her, the marriage of defendant to Florence Dutton had been dissolved by the death of said Florence Dutton. Sixth, that at the time defendant married Mrs. A.C. Turn, if at all, the former marriage of defendant to Amer Harvey had terminated by divorce. And the burden of proof is on the State to prove beyond a reasonable doubt each and all the foregoing ingredients of the crime; and if it has not been done so, it will be your duty to acquit defendant, or if you have a reasonable doubt whether or not the State has proven each and all the ingredients of said alleged crime, you will acquit the defendant." Then in addition, further charged as follows: "The State has introduced in evidence a certified copy of a judgment rendered by the District Court of Hopkins County, Texas, in a case entitled W.H. Cowser v. Armor Cowser. Unless you believe from the evidence in this case, beyond a reasonable doubt, that Amer Cowser, the woman to whom the defendant was married in New Mexico, was commonly called Armor Cowser, and that the Armor Cowser mentioned in said judgment was one and the same person as Amer Cowser, and that the W.H. Cowser mentioned in said judgment was one and the same person as the defendant, you will acquit the defendant." Still, in addition, he charged that the burden of proof was on the State and the presumption of innocence until guilt is established *268 by legal evidence beyond a reasonable doubt, and if they had a reasonable doubt as to his guilt to acquit him. The court committed no error in permitting the introduction of said divorce decree under the evidence and the charge of the court. The names "Amer" and "Armor" are idem sonans. Feeney v. State, 62. Texas Crim. Rep., 585; Gentry v. State, 62 Tex.Crim. Rep.; Smith v. State, 63 Tex.Crim. Rep.; American Ins. Co. v. Rodriquez, 145 S.W. Rep., 654, and authorities cited in said cases.
The act of sexual intercourse by appellant with his said stepdaughter was alleged to have been committed on or about April 30, 1910, which was clearly proved. By this act of intercourse his stepdaughter became pregnant and she so advised him. He consulted a doctor soon afterwards, telling him that said girl had suppressed menses and consulted the doctor thereabout. He afterwards gave her some medicine to take, which she took under his direction for the purpose of bringing on her menses, or bringing on an abortion, but it had no effect. After the condition of the girl became such as to be noticed by the family, they became uneasy about it and wanted to call in a local physician to examine her and determine what was the matter with her. Appellant vigorously opposed this and threatened personal violence to them or any physician who would there be called in for that purpose. After further consultation, with the family and appellant all present, it was determined to take the girl from Brady, in McCulloch County, to Fort Worth and have her examined by a specialist to ascertain what was the trouble with her. Appellant wanted to take the girl himself alone. Her mother demurred to this and insisted upon going with them. He vigorously opposed this. However, he and the girl and her mother, together, proceeded to Fort Worth. Upon reaching there the three went to a hotel, registered, got a room and went to the room. He wanted to delay the consultation with a physician. The mother insisted that it should be had at once. After seeing that he could not prevent this, he then confessed to the mother and daughter, all three being present, that he was the author of the girl's condition and that she was pregnant by him. Soon after this his wife, the mother of the girl, procured a divorce from him. The court, over his objections, permitted the mother and girl both to testify to what he said to them in his confession in the hotel, appellant contending that the former wife was not a competent witness to testify to what he had confessed and told them at the time. The court, in approving his bill to the admission of this evidence by his former wife, qualified it as follows: "The court ruled that any conversation between defendant and his wife in the presence and hearing of a third party was admissible. The court did not rule that it would be admissible if a third party heard some of it. At the time this witness testified in this case the defendant and his wife, A.C. Cowser, had been legally divorced and all the conversation admitted was in the presence and hearing of a third party or parties." The court's action in admitting this testimony was proper. Richards *269
v. State, 55 Tex.Crim. Rep.; Cole v. State,
By another bill appellant complains of the action of the district attorney in asking the prosecutrix this question: Q. "How many times did he have intercourse with you, Miss Agnes?" To which she answered: "A good many times." That the question was asked and the witness answered before he could object thereto; that he at once thereafter *270
objected to the question and answer and to the conduct of the district attorney in asking this question and getting this evidence before the jury. The court promptly instructed the jury to disregard both the said question propounded and answer. The court, in approving the bill, qualified and explained it as follows: "Defendant's counsel on cross-examination of Agnes Turn propounded to her and elicited from her the following answers: Q. When he (defendant) took you out of bed and did that way (had intercourse with her), you did not wake your sister up? A. No, sir; he wouldn't let me. Q. Well, you did not wake your mother? A. No, sir. Q. Then it went on for a month or two afterwards and still you did not tell your sister or your mother, in fact, you never did tell your mother about it, did you, until after this prosecution, did you? A. No, sir. On re-examination the district attorney propounded the question objected to with result stated in the bill. The attorney for defendant having proved that intercourse between these parties went on for a month or two, if there was error in the action of the district attorney it was, in view of the foregoing, harmless." There is no error presented by this. First, the testimony was admissible. (Burnett v. State,
The case had formerly been tried at a previous term. It is not certain whether a verdict was then returned against appellant, or a mistrial, because of a hung jury. Appellant's witness, Bud Sessom, was present and testified at that time. At a subsequent term the case was again called for trial; the State announced ready and the appellant made an application for a continuance on account of the absence of his said witness. The court overruled his application that time and forced him to trial. That trial resulted in a hung jury. At the September term, 1912, the case was again called for trial and appellant then filed his second application for continuance on account of the absence of said witness. That trial resulted in this conviction. The application for a continuance, we think, was properly overruled, because it did not show diligence by the appellant in attempting to secure the attendance of his said witness. Giles v. State,
No reversible error whatever is shown. The judgment will be affirmed.
Affirmed.
[Rehearing denied June 4, 1913. — Reporter.]