144 S.W. 275 | Tex. Crim. App. | 1912
Appellant was indicted, tried and convicted of the offense of incest, and his punishment assessed at two years confinement in the State penitentiary.
Appellant was charged with having had carnal knowledge of his niece, Viola McCullough. Appellant's principal contention in this case is that he is not related to Viola McCullough, nee Granger, for the reason that while it is true that the girl was born after the marriage of Fayette Granger and Bam Granger, yet it is contended that Fayette Granger is not the father of Viola, but that another person had illicit intercourse with the mother and was her father. Defendant introduced evidence tending to show that Fayette Granger was *370 away from home at the time that the mother must have conceived, and offered as witnesses Bam Granger and Warren Davis. The following bill presents the matter as presented by the record:
"Be it remembered that upon the trial of the above entitled and numbered cause the following proceedings took place, to wit: Defendant: I want to introduce the witnesses _____ Court: The ones you spoke to me about privately? Defendant: Yes, sir. Court: You may have a bill of exceptions to that matter. Defendant: All right, with an exception. These two witnesses are the mother, Bam Granger, and Warren Davis, as to who the father of this girl was. State: I object to that. Court: It was not necessary _____ Defendant: I wanted my exception, I didn't want to consume time. I believe I will ask permission to introduce these witnesses. Court: For the purpose you stated to me? Defendant: Yes, sir. Court: Well, you can't do it. Defendant: Then I take an exception.
"To all of which the defendant then and there excepted, for the reason that had said witnesses been permitted to testify they would both have sworn that the husband, Bam Granger, was not the father of Viola McCullough, but that her father was a negro who had been the paramour of the said Bam Granger during the absence of her husband; which proof the court having refused to permit the defendant to make, the defendant then and there excepted, and now here tenders this his bill of exceptions, and asks that the same be signed, approved and ordered filed as a part of the record in this cause, which is accordingly done.
(Signed) W.E. Donley, Attorney for defendant.
"Defendant's attorney, Mr. Donley, had approached me privately and told me he could prove acts of illicit intercourse between the mother of Viola McCullough and the negro man Davis by Davis and by the mother, Bam Granger, but that he doubted the admissibility of such evidence and would not offer it unless I thought it admissible. I told him I would hold it not admissible, it being my understanding that want of access by the husband was the only method by which the paternity of a child born in wedlock could be called in question; that until this want of access was shown the presumption of law was conclusive that the husband was the father and that this presumption could not otherwise be rebutted. Mr. Donley then said he would not offer the evidence and I said, `though, if upon investigation he questioned the correctness of my ruling and wanted to save the point I would allow his bill of exceptions presenting the point the same as if he had offered the evidence and it had been rejected in a formal manner. To this extent and to present this point for decision and no further this bill is allowed. The object and motive of counsel in attempting later on, to raise the question in the presence of the jury may be inferred." *371
It is thus seen by the qualification of the bill that what was desired to be proven by the witnesses were acts of illicit intercourse between them, and the question arises, can a child born in lawful wedlock be thus proven to be illegitimate? The presumption of law is that a child born in lawful wedlock is legitimate, and at common law, a married woman had no right to testify to acts of intercourse with another, or nonaccess of her husband on the question of bastardy or illegitimacy of her child. The reason for this, as stated in the phrase of Lord Mansfield, is based on decency, morality and public policy, and neither husband nor wife should be allowed to bastardize a child of the wife by showing acts of adultery on the part of the wife, or the nonaccess of the husband. The testimony is rejected, not so much from the fact that it would reveal the immoral conduct of the mother, as because of the effect it would have on the unfortunate child, who is not at fault, but who would be the chief sufferer. In regard to the testimony of the mother not being admissible it has been clearly decided by this court in Simon v. State,
In bill No. 2 it is stated a question was objected to and objection sustained. The answer that would have been made is not given. A bill of exceptions saved to the exclusion by the court of questions asked a witness will not be considered on appeal, which does not state what the reply would have been. Love v. State, 35 Tex.Crim. Rep.; McCray v. State,
While the witness Henry Foote was on the stand he was asked, "What is the color of this woman, Viola?" The witness answered, black. Objection was made to this question, which was sustained by the court. Defendant states that he was endeavoring to show that she was not of the same color as the husband of her mother. It appears that her mother was black, and if we take the record as a whole, we find that her husband was "gingercake" in color. We do not find where this specific question has been passed on by this court, but in the case of Illinois, etc., v. Bonner, 75 Ills., 315, it is held: Where one's mother was an Indian, proof that the father was a colored man will not be admissible to overcome the presumption of legitimacy, as the color will be referred to that derived from the mother. The court in approving the bill states he admitted all evidence tending to show "want of access," and we can not say the court erred in holding that the paternity of the child could not be otherwise impeached.
When one of the State's witnesses was testifying, the defendant desired to ask her if she had not had improper intercourse with a certain man, to which the witness answered, no. This woman had nothing to do with the paternity of either defendant or Viola, and it was not admissible to seek to thus impeach her, but the court says the witness answered the question and he did not exclude the answer, consequently under no phase does it present error.
There is no motion for continuance in the record, consequently we can not pass on the correctness of the action of the court in overruling it.
There is no bill in the record approved by the court, showing that the court admonished the defendant's attorney or what he said if he did do so, and none showing that the court interrogated any of the witnesses; consequently these grounds in the motion are not passed upon.
There was no error in the court not charging on circumstantial evidence as the witness Fannie Walton testifies to seeing the act of copulation. All the other bills of exceptions referred to in the motion for new trial are not in the record before us. Neither does the motion show what should have been in the bill, merely stating that the court "erred in admitting testimony as shown by bills of exceptions Nos. 13, 14, 15, 16, 17, 18, 19 and 20. No such bills being in the record, there is nothing we can pass on.
We have fully discussed herein every bill of exceptions approved *374 by the court, and the other matters are not presented in a way we can consider them.
Judgment affirmed.
Affirmed.
Prendergast, Judge, absent.