*1 y. The 1894.] 461 Exon v. The State. W. S.
No. Motion 26. Certiorari Decided May 474. for Decided merits June 13. Appeal Exception. on to Perfect Record —Bills of 1. Practice —Certiorari —. n Where, reputable counsel, is appeal, appear, on it made to the affidavit of exceptions improper prose- at the time to numerous were reserved the days cuting attorney thereafter, his to the that within three address prepared adjournment term, proper exception bills of were from the the before stenographer’s judge, to the notes and tendered district who agree approve same; whereupon to refused, the former to to and the latter the the same signed by stenographer, cleric, bystanders, one of whom was the the subsequently his file mark: that a writ certiorari would be who erased Held, part copies commanding up, record, granted to send as of the bills of the clerk papers thereto, exceptions relating properly under his hand and official certified seal. Exception Preparation Bills as to and Authentication 2. Practice practice Signed by Statutory Properly Bystanders, Law. —The in the When — rulings reserving to the manner of to trial court as mode and the provided especially chapter Statutes, is in articles Revised 1367. presented writing judge for The bill must be to the allowance and 1. reduced during signature term, the and within ten after the conclusion the trial. party bill, preparation, must first or his 2. The be submitted adverse signed counsel, judge if found and filed the clerk correct, shall be the with during term. judge party incorrect, suggest find the bill he shall corrections to the 3. Should sign it, they agreed same, and if to he shall and it will drew be filed. who party judge agree corrections, bill, shall 4. Should not return out, thereon, sign, and shall and file clerk a his refusal indorsed make with the with exceptions ruling actually presenting as occurred. bill party judge, may procure with the 5. dissatisfied bill filed Should be pre- bystanders signatures of three to attest correctness of bill which he same as of the record. and file the sented qualify without trial can not contradict 6. The of counsel. consent Appeal. the bill of the court refuses 3. Same —Practice —If thereof, in lieu bill which was and re- presented, and fails to file approved. appeal as if it by him will be and treated on considered fused Following 728. Wren, Belo v. only Bystanders.—The bystanders arises when the resort 4. Same — own bill in exceptions, filed his lieu thereof. bill of has refused offered court Impeachment trial for Rape of.—On a Wife Witness — —Defendant’s behalf, may, in his for the has testified as witness rape, defendant’s wife where credibility, asked whether she had impeaching purpose her character marriage. mistress before as his lived Jury Charge.—On a trial for Contradictory Statements Grand — Same — may impeached by proof husband, she of her the wife testifies behalf rape, where grand jury; contradictory made her when a witness statements carefully cautioned and instructed should be such admitted where wit, admitted, to purposes for the evidence charge only OrimtNal 33rd Texas impeachment of woman, pur- and that should not consider it for *2 pose, prosecutrix. either as evidence of the main nor as corroboration of the Argument Counsel-Improper Inflammatory ap- Abuse of 7. Remarks. — peals passions jury especially reprehensible unwarranted where sober, judgment in evidence invoke' desiring the facts deliberate aof to act
n hasty justly, indignant than the rather decision of men action. aroused n Appeal from the District Court of Bexar. Tried below before Hon. Georg-e H. NooNAN. in
The indictment this case charged appellant, rape W. with Exon, S. upon appellant one Martha Hein. At trial his was convicted, his punishment assessed at a term of in penitentiary. fifteen years in substance evidence shows that Martha the prosecutrix, Hein, year attained her twelfth in age 1893. Her father had died July, Germany, and his Berlin, parents, who village lived at "Wel- fare, Kendall County, money sent to the widow of their' son with to bring herself and two children They to Texas. reached grandparents home spring 1882. Martha’s mother grandparents left her with her Welfare, shortly at after their arrival; grandparents raised the she until child, remaining with them the 14th day years these that with April, During she lived her grandparents mother, she never recollected to have seen her or that her mother had develop visited them. The does not where her mother was during all these but it the fact years, does disclose that during period that she had married the S. defendant, W. Exon, that residing place on a on the Salado miles several west of San Antonio. Sometime spring 1893 Exon was near the vil- Welfare, lage Kendall Connty, and called to Martha see Hein and her grandparents. He found her to be a stout, buxom healthy, .country well lass, grown neighbor- her age, weighing hood of 180 pounds. grandparents Martha’s had raised her as well as their would circumstances at during she school a permit, part of the time. A short time after this visit of he and Exon’s his wife (Martha’s mother) both came to a Welfare, staying day so, day May the 14th to their on the returned home talc- Salado, ing Martha them. testified, day with She after she reached the defendant’s house her mother went off to a and while neighbor’s, she was at work in the kitchen defendant came in, pistol; took hold of her by leg, her, threw her and ravished threat- down, ening to shoot hallooed. says her she She when her mother came back she told about and her mother told her “to off go her it, shut did her that she not believe her.” swore that the mouth; She every day May her from the 16th of regu- ravished larly says 16th that each of up January, She his upon her was without her that oftentimes her cloth- assaults consent; bloody from the effects of his that each time ing violence; y. The 1894-.'] tell her mother her mother blame outrages she would Exon, say
her and and scold her about girl. she was a bad it, That on one while mother on the front occasion, sleeping was ravishing her, while defendant she porch, midnight, about her mother came at caught screamed and it; mother was to was a her, blame; girl; scolded said she bad grandmother on occa- did not Exon. She said that her scold spent night came down and at defendant’s that she house; sion did slept grand- not tell with her that she grandmother night; that, if her did not mother, thought because she mother care for her, For the did not tell brother nobody else would. same reason she years or 16 went to about Max, boy age. some She school two she went wife, weeks after to live Exon and and when asked *3 why tell “I teacher, she did not did answer was: because not, I if thought nobody own mother did not care for me would. my else I had told own mother.” Exon my She stated that watched con- very little of stantly, gave opportunity being with others. Generally present was not her mother was. That she ran away the 6th January of to her work- came brother who was Max, ing the city of San Antonio. That he took her to the of house Mrs.
Metz. She told her brother badly that had treated her at home, to did that she not tell him leave, had but she that Exon had been Mrs. Metz that after ravishing brought her. Martha was to testified, her house 6th of she did not at January, first tell her about treatment, Exon’s but on the Wednesday night following she told her that Exon used always had had watched told her her; her, hallooed he would shoot by that, her. meant that he crimi- She had nal connection her. with
Dr. Withers, county of physician Bexar and Dr. County, Menger, city physician of San testified to their made Antonio, examinations of person girl early part January. of the They found that vagina been great had dilated a the hymen that had been deal; by speculum a that ruptured; using they found the canal could dilated for seven “and it six or was evident that had inches; there copulation on for going been sometime.”
Mrs. for the defendant “My Exon’s is as follows: name I is Eliza Exon. am the wife of defendant Exon. Martha Hein is my never did time daughter. any complaint Martha Hein at make n me I did my raping that husband was her. at time catch never having criminal connection each other.”
Question: jury of you “Did county, this at 4 on a morning this that o’clock certain investigation you compromising child and Mr. Exon a caught your position, ” you doing?’ what are you Willie, Willie, called said, ‘Oh, question excluded court. .After this argument, 33rd Texas Criminal Question: you Mause, “Did not tell Mrs. before or trial since way a month at her he ago, house, this case about that he had his girl soup, done with that fixed and now he had eat ” question it*? After this was also the court. excluded argument, important most matters of The above shows the evidence pertaining to the case. which bills of exception,
Defendant seven cover about forty reserved matter, and are too voluminous to be pages closely typewritten re- exceptions to the produced. They mainly involved These attorneys jury. prosecuting were refused up by proven appear but were bystanders, have the file mark was afterwards erased. clerk, district Flemming, appellant. Gamp Ingrum, & defendant was prevented impartial from a fair and trial account of the argu- attorney, excep- ment of the shown defendant’s bills 3, tions and which are 6, motion, numbers made 4, 5, questions great many entirely that he outside discussed counsel had no opportunity defendant’s record, closing speech because alluded replying; full testified, speech whole defendant had not and because his vituperation was calculated arouse defendant, and abuse passions jury against and inflame and minds prejudice the im- prevent from a fair the defendant *4 laws this partial to him the guaranteed Constitution Gazley v. The App., v. Crim. Bryson State, 566; The 20 Texas State, 15 Texas Crim. Crim. Crawford The App., 17 Texas v. State, 267; 501. App., in that contrary this,
2.
jury
evidence,
The verdict of the
testimony
the
the
defendant
convicted
the uncorroborated
was
successfully impeached by
testimony was
prosecuting
whose
witness,
prosecuting
Hein
of the
testimony
Stout,
the
Mrs.
Max
(brother
Miss Mollie
Mrs. Andrew
Andrew
witness),
Ackermann,
Acbermann,
own mother,
Mr.
Mr.
Flamm,
Mullen,
Mrs.
Works,
Wright,
trial that
the
prosecuting
Mrs.
and because the
witness swore on
Exon;
day of
from
15th
raped
every
day
the
had
her on
the
defendant
May
against
consent,
6th
January, 1894,
force
her,
impos-
profusely every
raped
being
she bled
time
and that
done for
a
sible,
thing
that
could have been
against nature,
such
so
that
prostrating
without either
length
killing
such a
time
from the effect of it.
she
have died or become insane
would
witness
testimony
prosecuting
3.
not
It was
shown
her and
the defendant had assaulted
complained
ever
and he
raped
until
the affidavit was made
defendant
repeated
shows
although
was arrested,
465
The State.
v.
1894~]
second,
brother;
to her
grandmother;
to ber
to do
opportunities
first,
so;
to her school
fifth,
Mrs.
fourth,
Ackermann;
Mrs.
third,
Stout;
these
was with
when she
times
Miss
and at divers
teacher,
Works;
on and failed
going
was
rape
she swears that this
parties, while
Gazley v.
State,
4. in the district permitting The court erred not if it was stand, when on the witness wife of the she was time- long for a as his mistress a that she lived with in house before out at Government married, hill, to ask attorney in allowing with another and erred district woman; wife, upon objection over the defendant’s witness stand, question: you of the “Did following defendant’s counsel, of this grand jury county, investigation of this your that at 4 o’clock on certain child and Mr. morning you caught said, in called compromising you position, ‘O, Willie, Willie, you what are as shown bill of doing?”’ defendant’s exception question number because the said 1; illegal, was question effect said in prejudice was the defendant the minds of emphasized when the district in jury; re- attorney, plying to objecting defendant’s counsel question, presence said every that “the foreman and member of will swear to and the effect and it;” injury was still emphasized by further his closing argument prevent same and it all calculated to question, the defendant from having impartial a fair and trial. Willson’s Grim. art. Stats., Bryson sec. 735, 2442; State, Texas Crim. App., 566; Washington State, v. The Crim. 17 Texas App., The court erred refusing sign excep- the defendant’s 1, 3, 6, tions 2, 4, 5, numbers refusing failing to sign make out and file with the clerk such a bill of opinion present the matter accordance with the truth *5 required by of the facts, as articles 1365 and 1366 of the Revised Civil Procedure, Statutes of and article 686 of the Code of Criminal of part effect such conduct on the this, judge was defendant from prevent having appeal, case heard on and injustice the error and done him and re- the court below corrected Appeals. vised our Court of Criminal exceptions
6. The erred refusing court indorse bills of presented adjournment the defendant to days refusing within two after the his reasons for court, them, Crim. —30 Vol. XXXIII. n Texas Criminal 33rd on' of simply put as indorsement tbe back each one of instead said tbe to wit: exceptions following, “Refused. G. H. of Noonan,
bills prevents tbe assigning defendant from as error Judge,” Dis. bim from prevented having said error revised on said and reasons, appeal. tbe clerk of tbe having Tbe court erred District Court erase exceptions of tbe file marks and tbe official sig-
from each of tbe bills be bad filed tbe tbe nature of clerk after same, said to tbe and be presented judge indorsed bis refusal first and tbe defendant also accordance with article having, thereon, and of Civil article of tbe Code of Crim- Statutes, 1367 tbe Revised reputable tbe to be attested procured inal same three Procedure, them to tbe of Bexar County, bystanders, clerk, citizens thereon, adjournment file marks indorsed before tbe bad bis days tbe within two after tbe trial of said tbe effect cause, defendant of judge deprive on tbe of tbe is to which conduct appeal. Crim. court revised on Willson’s having the error said arts. McDow v. Tbe Sayles 1367; art. Civ. Stats., 686; Stats., Lindley Tbe Texas Crim. State, State, Crim. App., 98; Texas App., for
It. tbe State. L. Assistant Henry, Attorney-General, MOTION EOR CERTIORARI. ON bim a writ Judge. Appellant grant moves tbe court SIMKINS, com- of tbe District Court Bexar County, of certiorari to the clerk transcript exceptions tbe incorporate bim to certain bills manding filed in reputable behalf appears by counsel, It affidavit tbe ease. exceptions were taken to tbe argu- number of that a motion, said within three thereafter, for tbe State, ment of counsel exceptions prepared for term, tbe adjournment before tbe tbe district tbe Hon. attorney them to tbe district tendered them, refused read that tbe district H. George Noonan; six, to read tbe other read refused two, but and tbe district procured bystanders that counsel then on tbe same; indorsed tbe refusal duly tbe were tbe exceptions, same tbe bills sign absence, in bis notice to subsequently, counsel, without clerk; from said bills of bis mark filing clerk erased tbe district that tbe bills of It is further judge. shown, of tbe district order -by who took stenographer notes of tbe prepared from tbe exceptions stenographer and tbe said evidence tbe case; tbe down by- bills of citizens said reputable signed two other prayed that tbe order should opinion standers. We Court of Bexar of tbe District clerk Henry IJmscbied, granted, *6 y. The 1894.] forthwith commanded to forward to this
County, court, copy exceptions of the said bills of cause, the record of said hand and thereto, duly under his official seal. papers relating certified, Certiorari awarded. Judges present concurring. all ON THE MERITS. Judge. Appellant rape, pun- was convicted of and his
SIMKINS, In years penitentiary. ishment assessed at fifteen the State obedi- from ence to the writ of certiorari issued the bills ex- ceptions bystanders up signed by were sent the clerk the Dis- trict Court of Bexar and are now before us. The record County, shows number, entirely said bills of relate exceptions, seven They of the district case. were each indorsed subsequently and were “Refused,” attested three and filed the file marks were bystanders, April 20, 1894, erased. The on the 18th of April, verdict was rendered No reason is for the refusal or erasure of the file given marks. question
1. The decided what consideration is to be given is, approve to a which the court pre bill has refused as may and failed to file one lieu thereof? Whatever sented, have been practice prior adoption (Paschal’s the Revised Statutes articles Houston v. it is now the Digest, 170), 217-219; Jones, Texas, statutory if not right party taking permitted a bill of exceptions, present do so at the to write out and the same to the judge his signature during term, and within ten after the conclusion (Revised the trial article and the 1363); “conclusion Statute, verdict, trial” is held to be after for anew overruling motions trial or in of judgment, arrest where the are filed. same Willson’s Crim. Stats., sec. Shubert v. The Texas Crim. 2366; State, App., 323; Blum declares, The statute further Schram, sug when the finds bill so to be incorrect he shall gest party not corrections; and, agreed presenting return the bill with his refusal bill, thereon, shall indorsed of excep and shall make and file with the clerk such a bill out, sign, present as in his of the court it ac will, opinion, ruling tions tually party Rev. arts. 1366. Should Stats., 1365, occurred.. he then judge, may dissatisfied provided resort to article Revised Statutes. Un bystanders, plain statute, bystanders der the terms of the to resort to only exception, when the the offered bill of arises court has refused own aud filed his bill lieu thereof. Until that is the counsel done, bill, preparing not court unfairly can assume that the will act to the bill as filed When there- may agree or that court. *7 33rd Texas Cbimimal be prepared has within ten after conclusion of the trial fore, and exception, his bill of it presented refused, and has been he has done required him premises all that can be until the court acts required by the statute. The can not be made to suffer from if presented the court refuses the bill as neglect judge; certainly and fails to file one lieu then we will look to thereof, refused to whether it bill so ascertain contains merit, if approved. treat it as it fact had been Belo v. Wren, If the court should decline indorse refusal on the bill permit appellant simply or refuses to it to be has to resort to his filed, difficulty writ of certiorari for redress. Much with reference to permit bills of obviated the court would . be is and not wait until made, be taken at the time error, importance supposed result of magnified the ease has It judicial frequently when action invokes adverse criticism. should while he always may be remembered that the trial state reasons action, or authority qualify for his has no to contradict the bill ex- article ceptions (Revised without consent of counsel Statutes, 1366); presumed accepts such will when counsel while consent changed by (Jones’ p. yet has been case, ante, 7), may approved counsel insist that his bill be refused without modifi- refused, and when and after the court files his then coun- cation, bill, bystanders’ sel will be allowed time sufficient to file a bill, and, (Revised the same is contested article Statutes, have reason- 1367), supporting able time obtain affidavits. prosecutrix, The evidence of the who is a stepdaughter age prove ap under the tended to
appellant, years, pellant had for months continued criminal her until intercourse with away. except ran but testimony, she There is little corroborating her brother testified to seen stated her and she she crying, tell why, testimony physical dared not as to physicians away. many respects condition after she ran Her in It is shown credible, contradicted other witnesses. bill facts, number and corroborated the statement of the wife of on the Exon, placed Mrs. stand appellant, complained had ever daughter and asked whether defense, caught of her she had ever raping her, husband or whether other, Exon with each daughter criminal connection questions “Ho, cross-examination the replied, sir.” On with defendant asked witness whether she had not lived as his State and, upon court excluded the marriage, mistress before objection, question. We think the court erred. The evidence went then credibility of the witness. The State asked character and “Did of this question: you grand jury not swear before the following certain that at 4 o’clock on a investigation county, y. 189Jf.~\ in compromising position, child and you your morning caught ‘ ’” Willie, doing1? you what are and said, O, out to you him, called had no that the ground
Appellant objected, and what she stated husband, as a witness call the wife objection reply In proven. there could hearing attorney said, the district appellant’s counsel, thereof, every member jury, of the grand foreman that “the appellant objection, sustained the The court will to it.” questions prejudiced injured greatly that was insists *8 the although by that, the attorney, remarks of the in his attorney, the district court, questions excluded appellant’s over being true, commented closing argument, no grand jury it is true that the While protest objections. it does not testify husband, to her against Mrs. Exon compel to any to one by her to the grand made jury, follow that statements directly her when testifies impeach to can not be used else, placed himself her on the stand Appellant trial. contrary on the purpose impeaching daughter’s testimony, her for the witness, and, her caught at husband ever, time, whether she witness was asked Her and she denied it. connection, criminal daughter having had been caught by that she and defendant had testified daughter it as to this Having appellant matter, testified for in the act. witness credibility cross-examin for the State to attack her competent contradictory statements made as to the identical her own ing her as to for this only admissible for such a state purpose, but it was matter; in no way of her could be used husband, made in the absence ment, Appeals, 203, Washington’s him. In 17 Texas Criminal of her made absence wife, this court held statements questions impeach credibility, though to husband, admissible she had been examined case were held inadmissible because was cross-examined. But it the matter about which she in chief as to opened inquiry that had the defense by the court, is said impeach into it would have been admissible as matter cross-examined prove fact, a collateral to testimony it was testimony. While ing fact, prove the main wit, it was inadmissible credibility, the want duty of the court to see and it becomes appellant’s guilt; wit, object of such evidence carefully cautioned as jury that the in this was excluded the evidence case Now, it offered. whenever that the entire attorney informed the the district but Exon stated she saw her fact that Mrs. jury would position ab o’clock compromising daughter husband but improper, only highly him. Not was this called to morning, and it to remain statement, but allowed not exclude this did Had the attorney. speech of the district emphasized by jury, no would doubt the learned properly admitted, 33rd Texas Crimlnax have cautioned tbe jury, as was not done. Washington’s ease, 17 Texas Crim. App., There can no question importance as to the testimony. The State had but slight corroborating testimony. injured girl testified, that stepfather forced her yield his desires every from May to that she cried January; frightened but he hallooed, her with pistol a. into that she submission; complained to her who told mother, she didn’t believe that one it; morning at 4 o’clock her mother caught stepfather and herself in only act, blamed her for it. The statement of Mrs. Exon be grand jury fore the naturally therefore be taken the jury, unless carefully to be cautioned, strong corroboration of her daughter’s evidence. It apparent is therefore that the court should so have in structed or excluded the testimony.
3. Making due allowance for the zeal of the district the excitement of the that he was fretted by the in- constant terruption of the counsel we are of the opinion that the as set forth in argument, exceptions, certainly objection- inflammatory able nature its appeal to the passions of the If jury. injured facts sworn to girl were rather true, was case invoking the sober, deliberate judgment desiring the jury, to act rather than justly, hasty decision of in- men aroused to *9 dignant by passionate action invective.
The judgment is reversed and cause remanded. Reversed and remanded. present all
Judges and concurring. . Boyd M. W. The State No. 509. Decided June Incompetent Bigamy "Wife first, lawful, Witness. —The —Defendant’s prosecution against wife can not he used as a witness her husband in a bigamy. latter for Appeal from the District Court of Tarrant. Tried before below Hon. P. S. GREENE. appeal
This is from a punishment conviction for as- bigamy, being years sessed a term of five in the penitentiary. of facts, statement which was is as fol- agreed parties, proved
lows: ‘'The State W. M. in Tarrant Boyd, County, on the 30th E. day March, married Mrs. M. marriage that the T. lake; ceremony performed by McBride, B. a minister of gospel; that a license was issued marriage county County, clerk Tarrant on the 30th au- March, 1893,