182 S.W. 465 | Tex. Crim. App. | 1915
Lead Opinion
Appellant was indicted for incest with his niece, Cassie Dunn, the daughter of his sister, was found guilty and assessed the highest punishment.
The State introduced said Cassie Dunn as its first witness. She testified on direct examination to her relationship to appellant as alleged in the indictment; that she was twenty years old June 18, 1914; that for the four or five years preceding this trial, which occurred in February, 1915, she had been living with and making her home with appellant; that when she first went to living with him his family consisted of himself and two sons, then nearly grown; that about two years after she went to live with appellant, her sister Fannie, two years younger than she, also arrived there and thereafter made her home also with her uncle; that both appellant's said sons married, one more than a year before this offense is alleged to have been committed and the other some time before that, and that both of them thereafter ceased to live with their father but had their own homes and lived at their own homes in the same community; that when these two sons of appellant thus married and removed from appellant's and established their own homes, she, appellant and Fannie constituted the family; that after Fannie arrived at appellant's and made that her home, she, Cassie, did the housekeeping, cooking, washing and milking and that when Fannie was there Fannie assisted her in the discharge of these duties; that she and Fannie had five other uncles living in the same community of appellant, appellant's brothers, whom Fannie visited from the time of her arrival at appellant's until after this offense was committed; that she would sometimes go and stay a week or two at a time, though not very often, but she would go and stay with them whenever she wanted to. "When Fannie would go away that would leave Uncle Alfred (appellant) and myself alone. When Fannie was gone I did the milking and cooking; I kept house and made up the beds, etc." That when Fannie was there she assisted Cassie in these duties; that during all that time she, Cassie, had no sweethearts or beaux and kept company with none such; that she occasionally went to parties, gatherings, singings and things of that kind but not often; that she went more before appellant's two sons were married, they taking her; that whenever she went, either appellant or one of the sons would carry her; that appellant carried her to church but did not carry her to parties and occasionally took her to town; that she left appellant's, who lived in Coryell County near Turnersville, and went to her father's home, who is shown to have lived in Clyde, in Callahan County, on June 19, 1914; that "Uncle Alfred (appellant) treated me just like he would one of his own children all the time I lived there. He treated me right, — just like he would his own girl. Anything I wanted I got it, dresses or anything else. . . . I love every one of my uncles. Yes, I expect I love Uncle Alfred better than any of the balance of my uncles. I have loved him all the time. . . . I was pregnant when I went home in June, 1914. I had been home about a month before my people found out that I was pregnant. Dr. Bailey is the *501 man that told them about my being pregnant. I was sick and we called in Dr. Bailey to wait on me, and he told them what was the matter with me. I have a child now. It was born the 29th of October."
The above is substantially and fully everything this girl testified on her said direct examination. It will be seen therefrom that unquestionably her testimony was favorable to the State and in no way unfavorable thereto; that it showed practically that appellant had the opportunity and he alone had the opportunity to have had sexual intercourse with this girl; that someone did, about the latter part of January, 1914, is unquestionably established, not only by her testimony, but by all the other testimony in the case.
Immediately upon her being turned over to the appellant for cross-examination he had her, the very first thing, to testify as follows: "Henry Dollins is the father of my child. My uncle never did have any illicit intercourse with me in any way. Never did ask me to. Never asked me to yield to him in any way. During the entire time that I lived with my uncle he never did undertake or try to get me to do anything that was wrong. I have just told you that Henry Dollins was the first person that ever had intercourse with me. The first time Henry ever had intercourse with me was at Hazel Ford's. Hazel Ford lived about a mile from where my uncle Alfred lived. I recall the fact that Hazel Ford and his wife went to Meridian in January, 1914."
In view of several questions raised by appellant's bills of exceptions, we deem it proper to here state what the trial judge said, and sometimes repeatedly said, in explanation and qualification of appellant's said several bills.
In one he said: "It is further apparent from the whole testimony that a conspiracy existed between the defendant and the prosecuting witness (Cassie Dunn) not only to commit the crime of incest, but to go further and suppress knowledge that the child that was to be and in fact was later born, was the fruits of the crime of incest, and the conspiracy extended even further on the part of the prosecutrix and defendant and looked to a resumption of their unlawful relations with each other as soon as the birth of the child had been accomplished and the public had been quieted, and the relatives of the prosecutrix and defendant satisfied regarding the defendant's connection with prosecutrix. It is evident also that the conspiracy extended and contemplated that both prosecutrix and defendant would deny that the defendant was the father of the child in question and commit perjury with regard thereto, if necessary, in order to keep secret the fact that said child was the offspring of incestuous intercourse, and in order to carry out their design that such intercourse might be resumed by them. . . ."
In another he said: "The witness (Cassie Dunn), though used by the State, had sworn on the trial that the defendant was not the father *502 of her child and showed to be very friendly toward the defendant and willing to swear anything that she could that would be in his favor."
In another he said: "The witness was extremely unfriendly to the State and sometimes sullen and openly testified to anything that she thought would be beneficial to the defendant."
In another he said: "The prosecutrix testified adversely and injuriously to the State on the trial of this case. In fact, she was friendly to the defendant, and in his hands `like clay in the potter's hands.'"
Bob Hollingsworth, a cousin of appellant, testified that in April or May, 1912, one morning between daylight and sun up he went to appellant's house to see him on some business, and as he walked up to the yard gate, he looked into the house and saw Cassie Dunn sitting in appellant's lap; that at the time neither Cassie nor appellant saw him, but before he could call, a dog barked, which attracted their attention; that they then both looked and saw him, and Cassie at once got up out of his lap and sat in a chair beside him.
Oscar Easter for the State testified that in the spring of 1914 he went, late in the evening from Neel Dollins to Tom Dollins to get some clean clothes, they both living in the same neighborhood of appellant; that appellant lived somewhat between the said two Dollins, and on this occasion he went by appellant's to see him; that in approaching appellant's lot he saw appellant therein feeding or preparing to feed his stock and that said Cassie went out there at that time to milk; that she at once went into the seed house. Appellant immediately followed her and while she was therein he went into the seed house; that he, the witness, then approached the seed house in such a position and close enough that he could see both the parties therein; that he then saw appellant and said Cassie having sexual intercourse.
Appellant testified and both he and said Cassie denied that they had ever at any time or place had sexual intercourse.
Appellant made a motion for a continuance on account of the absence of his mother and his two married daughters, Mrs. Whitley and Mrs. Ford, his two daughters living near to and in his immediate vicinity. The State vigorously contested this motion. The bill and record shows that he was indicted January 19, 1915, arrested on the 22nd, made bond the same day and that day had subpoenas issued for said witnesses, which were executed, returnable January 25th, at which latter time the case was set for trial. It appears that for some reason the case was reset from the 25th to the 27th of January, at which latter date Mrs. Ford was in attendance but the other two were not; that the trial of the case was again postponed for some reason undisclosed until February 3rd; on that date it seems neither of these witnesses attended. The case was again postponed till February 5th, at which time neither of the witnesses were present, though they had been notified by phone on the 3rd to appear on the 5th. Appellant claimed that each of them was too unwell to attend the court.
The court, in allowing and approving the bill, fully explained and qualified it, which was accepted by appellant and he is bound thereby. *503
In this explanation and qualification the trial judge showed that appellant's mother was an old woman eighty-six years old and was unable to walk without help; that she was both aged and infirm, of which appellant had absolute knowledge all the time, and her absence was no ground for continuance; that he could and should have taken her depositions, citing art. 818, C.C.P. We think there can be no doubt but that the court correctly overruled the application as to this witness. Kirkpatrick v. State,
By appellant's bill No. 2 he complains that the State was permitted, on redirect examination of Cassie Dunn, to have her testify that she had a conversation with Dr. Bailey about writing to the child's father for money, his objections being that it was out of his hearing and presence, was hearsay, immaterial and irrelevant, he could not be bound thereby and it would tend to prejudice him before the jury. By his bill No. 7 he complains that while Dr. Bailey was testifying for the State he testified that when he first examined Cassie Dunn and told her she was pregnant that he told her a place where she could go and stay till the baby was born, and if the man who was responsible for her condition was able to pay for it she could go there and stay until the baby was born and they could have someone to adopt the baby and she could return to her home and that noboby would ever know anything about it; that it would take a good deal of money to do that, and that Cassie said she could get plenty of money. Appellant objected to this testimony for the same reasons as to that of Cassie in bill No. 2. The court explained each of these bills and shows that in effect this testimony of Cassie Dunn was brought out on his cross-examination of her and with reference to the writing of a $300 letter introduced in evidence. Besides, as to bill No. 7, the court further states that appellant did not object to Dr. Bailey stating the whole conversation he had with Cassie in explanation of his attitude and that he understood it was agreeable with appellant's attorney for the doctor to make said full statement and that the objection he made was not to its admissibility but went rather to the weight of the testimony. As explained by the judge neither of these bills shows any error.
Appellant has several bills of exceptions as to what the State proved was testified to by Cassie Dunn before the grand jury and the admission in evidence of her written sworn statement made before it, and of her other testimony and conduct before the grand jury. Said written statement is as follows: "Jan. 11, 1915. Miss Cassie Dunn being duly sworn testified: For about the past four years I have lived with Uncle *504 Alfred Hollingsworth, near Turnersville, in Coryell County. When I went there to live his family consisted of himself, his two boys, Roy and Joe, and Grandmother H. lived there about half of the time. Roy and Joe both married about October, 1912, and moved to themselves. Me and Fanny lived there all the time. My brother William lived the most of his time with the other kinsfolk. I did the cooking, the milking and the general housework, and Fanny helped me. My baby was born October 29, 1914. I never had any intercourse with but one man in my life. The first time I ever had intercourse with this man was when I was about nineteen years old. I had intercourse several times. I never had any sweethearts. I told Uncle Alfred not to tell who it was. He knows who it is and he is the only one I ever told who it was and he will not tell. I won't tell who it was. Fanny wrote the letter you have shown me dated November 22, 1914. She wrote it for Uncle Alfred. Somebody else wrote the one to father, but Uncle Alfred signed it. That is his handwriting. I received that letter through the mails. I wrote the letter you have read me dated November 24th to my uncle. I knew I was doing wrong. I would not have yielded my virtue to any man that did not have my respect and confidence. I had intercourse with the man in different places, both night and day. Uncle Alfred knew when I left to go out West that I was pregnant, and I promised him not to tell it. He knows who it is. The things I said in that letter are true. Cassie Dunn." We will discuss the questions raised by these bills without taking them up separately. We have given above the substance in full of Cassie Dunn's testimony on direct examination when first introduced by the State. A careful and thorough consideration of these bills, as qualified by the court, and unquestionably sustained by the record, shows that the State, in no instance and at no time, attacked or attempted to attack the said testimony given on direct examination of said Cassie Dunn. Her said testimony, as stated above, tended, we think, with considerable force, circumstantially, to show appellant's guilt. There is no indication by her testimony on direct examination which shows or tends to show that she failed to remember or refused to testify, or failed to make the State's case. On the contrary, it was shown by her testimony on cross-examination at various times and in its various phases, that her testimony tended, and if believed, would have shown appellant's innocence of the crime with which he is charged. Under such circumstances there can be no question, both by the statute itself (C.C.P., art. 815) and a long and uniform line of decisions, that the State could impeach and attack her as to such testimony so given by her on cross-examination. The fact, if so, that the State's counsel knew or had information that this witness on cross-examination might give testimony materially injurious to the State's case would not and could not preclude the State from introducing her as its witness to prove as it did material facts against appellant by her. As to these material facts only, the State had her to testify as stated above. The State never at any time sought to impeach her or attack her testimony drawn out by its direct examination, *505 but it was only that which was given by her at appellant's instance on cross-examination. Appellant seeks to apply that well established rule that it is error for the State to impeach its own witness where such witness merely fails to remember or refuses to testify or fails to make out the State's case, that a mere failure to make proof is no ground for impeaching such witness. Mr. Branch in his Criminal Law, section 866, lays down the above rule and cites many decisions of this court to that effect. Appellant cites only some of these cases cited by Mr. Branch. In other words, Mr. Branch cites a larger number of cases establishing this rule than does appellant herein, but they are all on the same line. The true rule applicable in this case is prescribed by our statute. It is (C.C.P., art. 815): "The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness." That is the rule and the only rule applicable in this case and was followed by the trial judge.
Appellant has several other bills, one of which was expressly refused by the court. Others so modified by the judge's qualification as to practically refuse them. And as so modified and qualified by the judge none of them present error. It is unnecessary to state them.
Appellant most vigorously attacked the testimony of said Oscar Easter as false, recently fabricated and corruptly induced by Henry Dollins and his brothers. Under the circumstances the court committed no error in permitting the two brothers of Henry Dollins, whom Cassie Dunn said was the father of her child, to testify to facts which circumstantially corroborated said Easter, over his objections, that their testimony was immaterial and irrelevant. McGrath v. State, 35 Tex.Crim. Rep.; Wade v. State, 37 Tex.Crim. Rep.; Hamblin v. State,
There is no question but that the other bills, as explained and qualified by the trial judge, show such a state of facts as that Cassie Dunn wrote to appellant a certain letter asking for $300. In fact, appellant acknowledged receipt of that letter but claimed to have lost it. That it was written by Cassie Dunn to him, received by him and lost or destroyed, was clearly established. So that not only did the State have the right to cross-examine him about it, but to introduce secondary evidence of its contents, and none of appellant's bills on that subject, as qualified, show any error.
Other bills, as qualified by the judge, clearly show that Cassie Dunn, soon after the birth of her child, wrote and had mailed to appellant a letter, a copy of which is as follows:
"I don't want to tell you a lie and I will not if the truth kills me. You know what you thought was the matter with me. It was so. It came the 29th of last month. It is a boy and all right. Has the bright eyes. I intend to bring it to Ft. Worth to one of the rescue *506 homes. You know it was nobody else but you, but I will die before I will tell it. I have told Pa a story. Never told you any stories. You may think I am not as good as I was. I know I am to blame for it. So you see what I wanted with the money. It was for Bailey. He charged me fifteen dollars, so you see that would be enough for me to go to Ft. Worth. I can't help what Pa wrote down there. He has done everything he can to get me to tell him. I'll die first. I told you I would not tell and I have not yet; do as you like, cast me off if you want to but I'll never tell it. I spent my money for fruit and the rest for the boy some close for the boy and that is why I wanted you to come to meet me. I wanted you to see him. Don't let Fanny read this. (On the back of this page is the following): `A.M. Hollingsworth. Fanny don't you open this. Uncle Alfred, you open it yourself.'" He denied the receipt of this letter, but the State established such a state of facts as would justify the trial judge and the jury to believe that he did receive the letter and his denial of the receipt thereof was false. Cassie Dunn's father, without her knowledge, took a copy of the letter to appellant and the address thereon, and he and Dr. Bailey at the time examined and compared the original with the copy he retained. If the letter was received by appellant, which he denied, he had lost or destroyed it and failed to produce it on this trial. Under the circumstances the copy of the letter and asking the various witnesses thereabout was clearly admissible.
On the theory that he had demonstrated to the jury that said Easter's testimony was false and that where he placed himself he could not have seen the act of incestuous intercourse between appellant and Cassie Dunn, he asked a charge on circumstantial evidence which the court refused. We think it would have been improper for the court to have given a charge on any such assumption. We have studied the record and statement of facts in connection with this matter and we think the lower court would not have been justified in taking that question from the jury by giving such charge. Whether his testimony or whether the testimony of the witnesses from their standpoint testifying that he could not have seen what he testified he did see, was correct or incorrect, was a question for the jury.
Among other things the court charged the jury as follows:
"You are further instructed that if you find from the evidence that the witness Cassie Dunn in her testimony before the grand jury stated facts relating to the defendant's connection with the alleged crime of incest differently from the way she testified on the stand in the trial of this case, then you can only consider her testimony before the grand jury for the purpose of enabling you, if it does enable you, to do so, in passing upon the credibility of the witness Cassie Dunn, and of determining the weight you will give to her testimony. Her testimony, as she gave it upon the stand in this case, must be regarded as her evidence in your deliberations. Her statements made to the grand jury, if any different to what she testified, can not be considered as evidence of the defendant's guilt, but only for the purpose aforesaid of aiding *507 you in determining the credibility of the said witness, if it does aid you in that regard.
"You are further instructed that if you do not believe from the evidence beyond a reasonable doubt, that the defendant received the letter, a copy of which has been exhibited in evidence before you, you will not consider the same for any purpose, except that of aiding you, if it does aid you, in determining the credibility of the witness Cassie Dunn, but you may consider it for that purpose only. However, if said letter was received by the defendant you will determine the weight you will give to the same under the instructions given you in the last paragraph of this charge." We think appellant's criticism of the last three lines of the second paragraph, claiming that it was on the weight of the evidence, is untenable. Taking the charge as a whole, it was proper for the court to charge as he did under the evidence. If the jury had not believed beyond a reasonable doubt that appellant received that letter — there was ample evidence for them to conclude he had, but as he denied it the question had to be submitted to the jury for a finding — then it was necessary for the court to tell them that they could not consider it at all. But, on the contrary, that if they believed he did receive it, then they could consider it only on the question of the credibility of Cassie Dunn, and under the circumstances, adding the latter clause to it and qualifying it with the first paragraph just above quoted, can not be construed to be on the weight of the testimony, but it was merely submitting the question to the jury. It is embraced within the rule about a confession which is denied by an accused. Besides, the court not only required the jury to believe affirmatively all the facts essential to convict appellant, otherwise to acquit him, but told them he was presumed to be innocent until his guilt was established by legal evidence beyond a reasonable doubt and in case they had such doubt to acquit him. And also that they were the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to their testimony.
Appellant has two bills of exceptions complaining of the argument of the district attorney. As qualified by the judge it is shown that the argument objected to was provoked and in answer to that of appellant's attorney, and neither presents error. Sinclair v. State, 35 Tex.Crim. Rep.; Baker v. State, 4 Texas Crim. App., 223; Chalk v. State, 35 Tex.Crim. Rep.; Ray v. State, 35 Tex.Crim. Rep.; Campbell v. State,
The only other question necessary to mention is appellant's motion for a new trial on the ground of newly discovered evidence. The court, as the record shows, heard evidence on this. The motion itself and *508 the affidavits attempting to support it and the statement of facts thereon are quite lengthy. We have carefully studied the question and the record on the subject. We deem it unnecessary to go into any statement of it. Suffice it to say that we think the trial judge correctly held that the appellant was not entitled to a new trial on that ground and we think would not have been justified in granting a new trial.
The judgment is affirmed.
Affirmed.
Concurrence Opinion
Reviewing the record in the light of the motion for rehearing, I am concurring with Judge Harper in reversing the judgment. I do not purpose to enter into a lengthy discussion of the facts; they are sufficiently set out in the opinion written by our Presiding Judge and Judge Harper. The letter, under discussion in those opinions, in my judgment, was not admissible either as original or impeaching evidence. The State was fully aware of the fact when they placed Cassie Dunn on the stand as a witness that she would not testify that appellant had intercourse with her, or was the father of her child, but that she would testify that Henry Dollins was the child's father. Before the grand jury she refused positively to name the author of her shame, but some time before the trial of the case she had informed the prosecution of the fact that she would not testify to her uncle's guilt but would testify that a man by the name of Dollins was the father of her child. This was communicated by Cassie Dunn to the State some time before she was placed on the witness stand. So any question of surprise was eliminated. She had not misled the State in any way, therefore they were not only not expecting her to testify that appellant was the father of her child but knew she would not. This is not a case like Blake v. State,
The State would not be authorized to place Cassie Dunn on the stand with full knowledge that her testimony would exonerate defendant and inculpate another as the guilty party, and successfully then offer another statement of hers made out of court which would be beneficial to the State. Perrett v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 316. I do not care to amplify this matter.
This is the only question in the case that I care to discuss. I think the exception to the court's charge was well taken, but I do not care to enter into a discussion of that question.
I, therefore, concur with Judge Harper in granting the motion for rehearing and reversing and remanding the judgment.
Dissenting Opinion
This case was affirmed, and the opinion rendered, on June 16, 1915. On June 29th following, — after this court had adjourned to October 4, 1915, appellant, by his able attorneys who represented him in the court below and in this court on the original submission, filed a motion for rehearing on these grounds only:
1. Claiming that this court erred in holding against him on his bills and propositions thereunder relative to the testimony of Cassie Dunn, as set out in pages 1, 2 and 3 of the opinion, and further contending that the judge's qualifications were unauthorized and this court in effect should disregard them. I think his contentions on this point are not well founded and can not be sustained. I further believe that the record bears out the district judge in his qualifications to the bills.
2. His next ground is, in effect, that the court erred in overruling his motion for a continuance. He also claims that the explanation made by the judge to his bill on this question is not borne out by the record. I have again examined this question, and think the judge's qualification is borne out fully by the record. I stated it sufficiently in the original opinion.
3. His only other ground for a rehearing is his claim that the court erred in overruling his motion for a new trial because of his claimed newly discovered evidence. I have again reviewed this question, and am well satisfied that no reversible error was committed by the court on this ground. He heard all the testimony, saw the witnesses and their manner of testifying, the manner of direct and cross-examination, and was better able to judge their veracity, etc., than this court possibly could. Lamb v. State, 74 Tex.Crim. Rep., 169 S.W. Rep., 1158. *517
As stated, the above three grounds are the only ones made the basis of the motion for rehearing herein. At the instance of appellant's other eminent attorneys, evidently engaged by him after the original decision and filing of his motion for rehearing herein had been had, the submission of this cause for rehearing was postponed for some weeks in order that they might further brief for him said motion. They then filed quite a lengthy and able brief and argument. Later, they were given additional time, and then filed still another brief.
Without any complaint whatever by appellant in his motion for rehearing, in said brief, he now urges two other grounds: — in one that the trial court erred in admitting in evidence the letter of Cassie Dunn to him, copied in the original opinion; in the other, to the latter sentence of the court's charge to the jury relative to their consideration of this letter. This charge is also copied in the original opinion.
First, as to the admissibility of said letter. It is conceded by appellant that the objection to the copy, because a copy and not the original, is under the proof, not well taken. He seems to concede in one place in his brief, "that letter and the inquiries made concerning it may have been admissible on redirect examination of Cassie Dunn, with a view of refreshing her memory, with a view of inducing her to confirm and admit statements theretofore made, or even for the purpose of contradicting her." But his urgent and vigorous contention is: "If the original letter had been presented and it was conceded that it had been received by appellant and it were shown beyond controversy that it was produced from his possession it would not have been admissible," and he asserts he will "demonstrate this." I think the reverse of his contention is the law and can be demonstrated to be so, both by reason and authority. His seeming concession that the letter may have been admissible for said certain purposes, and his immediate insistence that it was inadmissible, are, at least, apparently inconsistent and contradictory.
The witness Cassie Dunn was unquestionably "extremely unfriendly to the State," and "testified adversely and injuriously to the State" on appellant's examination of her, and "openly testified to anything she thought would be beneficial to the defendant," and was, "in his hands, `like clay in the potter's hands,'" as stated by the trial judge, and is abundantly established by this record. And, at his instance, and upon his examination of her, he had her to testify specifically: "Henry Dollins is the father of my child. My uncle (appellant) never did have any illicit intercourse with me in any way. Never did ask me to. Never asked me to yield to him in any way." She also swore that she told appellant before he sent her to her father's, that she thought she was pregnant, and: "I did not tell him I would not tell who the father of the child was. I did not make him any promise in that regard."
The State impeached her on this testimony directly by her written statements in said letter. It is copied in the original opinion. It is unnecessary to again copy it. A mere reading of the letter will show *518 it is a direct and flat contradiction of her said testimony in favor of appellant on this trial.
That said testimony by her in favor of appellant, and given at his instance, was very material for him and against the State, can not even be questioned by anyone. Its direct and only effect, if believed by the jury, would have been to destroy the State's case and show his innocence of the crime for which he was indicted and on trial. So that it was the imperative duty of the State to discredit and impeach her as to this very material testimony, if it could do so.
Every text-book writer on the subject, and the decision of every court of the land, is, that former statements of a witness which are contradictory of his present testimony are admissible to impeach him. This is not only so by oral, but especially so by written statements. This court has always heretofore so held, and all appellate courts of this State uniformly so hold. I know of no exception. This method of impeaching a witness is daily and universally acted upon by all trial courts of this State. In order that no uncertainty might arise on this point as to one's own witness our statute (C.C.P., art. 815) expressly enacted: "The rule that a party, introducing a witness, shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in other manner, except by proving the bad character of the witness."
There is nothing in his bills to show, or intimate, that the State knew or had any notice whatever that Cassie Dunn would testify that Dollins was the father of her child when it introduced her and she gave material testimony in its behalf. Even if the State had known this, there is nothing in the books or decisions, until the majority opinion in this case, that the State could not impeach her by said letter and her sworn written testimony before the grand jury. The effect of the decision in Blake v. State, 38 Tex.Crim. Rep., cited in Judge Harper's opinion, is to the reverse of what he cites it for. The cases of Scott v. State, 20 S.W. Rep., 549; Oates v. State,
That said letter and said statement before the grand jury was admissible to impeach Cassie Dunn, there is no shadow of doubt.
But appellant vigorously contends that the reason assigned by the trial judge why he admitted it, is, in effect, no valid reason, and is contrary to the law. His contention being, in substance, that a conspiracy can not be entered into to commit the crime of incest, arguing further that, even if there could be a conspiracy to commit such crime, that as soon as it is committed, "such conspiracy had terminated," and no statement or admission by the other party would be admissible against the party on trial.
It is elementary that a wrong reason for a correct ruling can not *519 affect the ruling even if it be conceded the trial judge gave a wrong reason for his correct ruling. I know of no law, or decision, to the effect that the man and woman who commit incest can not also be guilty of conspiracy to commit said crime. I know of no reason why they can not. The statute is plain that they can. Article 1433, P.C., is: "A `conspiracy' is an agreement entered into between two or more persons to commit any one of the offenses hereafter named in this chapter." Article 1437 is: "The agreement, to come within the definition of conspiracy, must be to commit one or more of the following offenses, towit: Murder, robbery, arson, burglary, rape, or any other offense of the gradeof a felony." Incest is a felony. (Art. 486, P.C.)
Further, the trial judge explained and qualified appellant's bill to the admission of said letter fully. I quoted most, but not all, of this, in the third page of the original opinion, which is the first quotation therein of his quoted qualifications. He did not limit his qualification to only a conspiracy to commit the crime of incest, but pointedly stated such conspiracy went further. I will state the full substance of his explanation and qualification. It is: That a conspiracy existed between defendant and Cassie Dunn, not only to commit the crime of incest, but also to suppress knowledge that the child that was to be, and in fact was later, born, was the fruits of their crime of incest; and extended even further, to a resumption of their unlawful relations with each other as soon as the birth of the child had been accomplished and the public quieted, and their relatives satisfied regarding his connection with her, and that they both would deny he was the father of the child, and commit perjury with regard thereto in order to keep secret the fact that said child was the offspring of the incestuous intercourse. and to carry out their design that such intercourse might be resumed by them, and it was during all this conspiracy said letter was written to and received by him. He accepted this bill thus explained and qualified, and under the well settled rule, until now in this case, is bound thereby.
In his brief and argument he ignores, — at least does not discuss or mention, — the full conspiracy, but confines his contention to only one item of it, towit: the crime of incest. The case of Serrato v. State, 74 Tex.Crim. Rep., 171 S.W. Rep., 1133, is directly in point against him. In that case Serrato was on trial for the murder of Ortiz. He claimed not only that he personally had nothing to do with the killing, but also that he was not a party to any agreement or conspiracy with some fifteen others, or any of them, to kill; and, further, that, if he had entered into such conspiracy, it terminated with the killing, and that thereafter no act, conduct, word or statement by any of the others was admissible against him. The State contended that the killing did not terminate the conspiracy, but it also embraced additional things thereafter to be done. With the issues thus drawn, the State was permitted to introduce in evidence, over his objections, all the acts and conduct of each and all of said other parties, and what each of them said, after said killing and until they were actually arrested and placed *520 in jail — all of said acts, conducts and statements occurring after the killing. This court expressly held all said evidence was admissible, holding:
"It has always been the rule in this State that the acts and declarations of one conspirator in furtherance of the common design are admissible against another conspirator pending the conspiracy and until its final termination. This proposition includes anything that was within the contemplation of the conspiracy, such as dividing the spoils, or any of those matters that may be subsequent to, but included in the scope of the conspiracy. O'Neal v. State, 14 Texas Crim. App., 582; Rix v. State, 33 Tex.Crim. Rep., 26 S.W. Rep., 505; Franks v. State, 36 Tex.Crim. Rep., 35 S.W. Rep., 977; Small v. State, 40 S.W. Rep., 790; Long v. State, 55 Tex.Crim. Rep., 114 S.W. Rep., 632; Gracy v. State, 57 Tex.Crim. Rep., 121 S.W. Rep., 706; Milo v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 1028; Kipper v. State, 45 Tex.Crim. Rep., 77 S.W. Rep., 611; Holt v. State, 39 Tex.Crim. Rep., 45 S.W. Rep., 1016, 46 S.W. Rep., 829; Eggleston v. State,
"And what is said and done by any of the conspirators, pending the conspiracy and in furtherance of the common design, is admissible against the one on trial, though said and done in his absence. Wallace v. State, 46 Tex.Crim. Rep., 81 S.W. Rep., 966; Barber v. State, 69 S.W. Rep., 515; Trevino v. State, 38 Tex.Crim. Rep., 41 S.W. Rep., 609; Dobbs v. State,
If, as contended by appellant in his brief, the conspiracy between him and Cassie had gone to the extent only of committing incest, then his contention might have been applicable and sound. But the conspiracy between them did not stop with their agreement to commit, and committing, incest, but, as stated by the court, it was not only (1) to commit incest, but also (2) to suppress all knowledge that her baby was the fruits of this crime, and (3) that they both would deny *521 he was the father of her child and commit perjury in order to keep secret the fact that said baby was the fruit of their incestuous sexual intercourse, and (4) as soon as the public was quieted and their relatives satisfied he was not the father of her illegitimate baby, resume their illicit incestuous intercourse. It is, therefore, certain that their conspiracy had not been completed and ended, but that it was still pending and incomplete, and they both were, on this very trial, doing all in their power and within their agreement to carry out their full conspiracy. Again, as specially applicable herein I reiterate what this court said in Martinez v. State, supra, as follows:
". . . The rules of law governing in conspiracy cases have been well established, and as said by a well-known writer:
"`The conspiracy may, of course, be shown by direct evidence, and it is apprehended should be so proved if this character of evidence is attainable. Direct evidence is, however, not indispensable. Circumstantial evidence is competent to prove conspiracy from the very nature of the case, and the rule which admits this class of evidence applies equally in civil and criminal cases. In the reception of circumstantial evidence great latitude must be allowed. The jury should have before them every fact which will enable them to arrive at a satisfactory conclusion. And it is no objection that the evidence covers a great many transactions and extends over a long period of time, provided, however, that the facts shown have some bearing upon, and tendency to prove, the ultimate facts at issue. But much discretion is left to the trial court, in a case depending on circumstantial evidence, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact. If it be shown that several have combined together for the same illegal purpose, any act done by one of them in pursuance of the original concerted plan, and with reference to the common object is, in the contemplation of the law, the act of all, and therefore proof of such act will be evidence against any of the others who were engaged in the conspiracy, and any declaration made by one of the parties in the absence of the others during the pendency of the illegal enterprise is not only evidence against himself but against all the other conspirators who, when the combination is proved, are as much responsible for such declarations and the acts to which they relate as if made and committed by themselves.'
"These rules have been approved in all the text-books and in the following cases in our own court: Atkinson v. State,
Upon a most careful study of the testimony, I think it clearly supports the judge in his qualification of appellant's bill. In the original opinion I stated some of the facts. I will here give some other of the salient facts. In the first part of the original opinion I gave the material Cassie Dunn's testimony on direct examination by the State. It shows with much cogency that appellant, and he alone, had the opportunity to get her pregnant. In his brief he seems to concede this, stating that he had an opportunity, and probably the best opportunity of anyone else, to have committed the offense, "does not appear a matter of doubt under the evidence." That she was gotten pregnant by some man about January 29th, while she lived with appellant, is established with certainty by the fact that a baby was born to her October 29, 1914. She swore she told him, when it occurred, that she had missed her menses, but she told neither her sister nor grandmother. Se swore "that she was sick some way. Her womanly periods had stopped," — the natural effect of pregnancy. They both swore he then took her to a doctor to see if she was pregnant. The doctor swore this was the latter park of February or first of March, 1914; that appellant told him to examine her, and he did so, and did not then discover any evidence of pregnancy. It was then just about a month since the act of intercourse producing pregnancy had occurred. The doctor said that he felt of her abdomen and stomach through her clothes, and did not make any further examination of her. Of course, at that early stage, his very casual examination of her could not, and would not, disclose pregnancy; but he testified that the child's birth made it certain that she was pregnant when he examined her. Appellant sent Cassie off to her father's in June, 1914. She swore that before that she told him she thought she was pregnant, but "he did not ask me who the man was," "did not make any inquiry as to who the father of it was." "He did not ask any questions about it." The reason he didn't is perfectly evident. It was because he knew that he, and no one else, had had sexual intercourse with her, and that he, and no one else, had gotten her pregnant, and that he, and no one else, could be the father of her then unborn babe. No other conclusion can be drawn. When appellant sent her off to her poor old father to be confined, he intended she should return to him as soon as the babe was born and she could, for he swore when he sent her he gave her money to buy her return ticket to come back on. She swore that she intended to return to him. The trial judge was clearly justified in believing and stating, that this return was for the purpose of resuming their illicit incestuous intercourse. That the judge was authorized to believe they both swore falsely when they said he did not have sexual intercourse with her is clear from the testimony. It was a month after she reached her father's that the doctor there, and her father, found out she was pregnant. Her father at once did all he could to get her to tell him who got her pregnant. She refused to tell. *523 The doctor tried to get her to tell him. She refused. The doctor then advised her that he knew a maternity home in Kansas City where she could go, be confined, the baby adopted, she return, and nobody would ever know anything about it, but it would take $250 to $300 to do this, and advised her to write to the father of the child for the money. She promptly wrote to appellant for the money, $300, telling him she wanted it to go to said maternity home in Kansas City. He failed or refused to produce that letter, but admitted he received and promptly answered it. No doubt the letter gave him full information, and if produced would have been most damaging against him. He swore, "when the girl (Cassie) wrote me she wanted $300 to go to a maternity home in Kansas City, I wrote her and asked her why she did not go to Fort Worth or Dallas or Abilene, somewhere in Texas."
The judge was clearly authorized by the evidence to believe Cassie Dunn's testimony, that Henry Dollins, and not appellant, was the father of her babe, and that she did not promise and agree with appellant not to tell he was its father, was untrue. I will give some more of these facts which justifies the judge's qualification. If Dollins, and not appellant, had been the father of her babe there was no reason on earth why she would have refused to tell on Dollins, for neither he nor she would have been guilty of any offense. When pressed for a reason she said, "because I did not want to tell it." On the other hand, there was every reason for her to refuse to tell on appellant, for, if she did, he was certain to be convicted of incest and be sent to the penitentiary as a criminal. They both knew this. She flatly refused to tell her father, her doctor, the grand jury, or anyone else. Of course appellant knew it without her telling him. She swore before the grand jury, "Uncle Alfred (appellant) knew when I left to go out West that I was pregnant, and I promised him not to tell it. He knows who it is." "I never had any intercourse with but one man in my life." "I had intercourse several times. I never had any sweethearts. I told Uncle Alfred not to tell who it was. He knows who it is . . . and he will not tell. I won't tell who it was." "I would not have yielded my virtue to any man that did not have my respect and confidence. I had intercourse with the man in different places, both day and night." If she had at first told her father, her doctor, and especially the grand jury, that it was Dollins, the probabilities are the grand jury would never have indicted appellant. Her late tale, that it was Dollins, is so unreasonable that it could not deceive or mislead anyone to believe it was he, and not appellant. She and Dollins were barely acquainted. They had never been thrown together so that he could have had an opportunity even to have gained her "respect and confidence." Her whole conduct and every act and word of hers, from start to finish, stamps her testimony that it was Dollins and not appellant as unreasonable. She swore she never, at any time or place, told Dollins that he was the person who got her pregnant, and never at any time so wrote him. That she never wrote to him at all. When the doctor told her to write to the father of her then unborn babe and get money to go to *524 the Kansas City maternity home so that she could there be confined and effectively conceal her shame, she promptly wrote to appellant, and not Dollins, for the money. She swore she loved her uncle. He swore he loved her. That love was not merely such affection as is common and natural between an uncle and niece as such, but it was more, it showed to be amorous. This record shows that the U.S. mail was kept "hot" carrying letters, almost daily, from one to the other just after he sent her away to be confined, like the most ardent lovers when separated, one from the other. Of course it was not shown the full number of letters which passed beween them. The State had no way of securing them. It is apparent they both would conceal every one which they thought would have a tendency to "give them away," and that they would produce only those which they thought would not do this. He failed and refused to produce the letter wherein she wrote for said $300, although he had to admit he received and answered it, and he denied receiving the one copied in the opinion, but the State proved not only that she wrote him that letter, but that he also received it. Among other things, her and his testimony, in effect, shows that her belated tale that Dollins, and not he, was the father of her babe, was very recently manufactured. Appellant at first had had Dollins subpoenaed as his witness to testify to his good reputation. Dollins had attended the various settings of the case to so testify for him. But just before the trial, it seems, Cassie recalled the fact that years before, and before Dollins was married, he (Dollins) had been indicted in Bosque County for seduction, and upon that, doubtless inspired by appellant, she attempted to manufacture the tale that Dollins was the man. Appellant testified that when Dollins went to work on a bridge near his house he warned Cassie not even to work in the garden in sight of, but some distance from, Dollins, "just on account of the way he (Dollins) had acted heretofore, you know. Yes, that was the reason." That his community knew Dollins had been charged with seduction. Of course both Cassie and appellant swore, in effect, there was no concert between them that she should try to swear it off on Dollins, but all the circumstances were amply sufficient to justify the belief that such was a fact. Dollins swore positively that he never at any time or place had sexual, or even ordinary social, intercourse with Cassie. And his, and other, testimony showed he never had the temptation or opportunity. That the said seduction charge against him was defeated by proving that said alleged seduced woman was common — other men had sexual intercourse with her, and all this occurred years before while he was unmarried. That he had been married for about four years, and had a strong, vigorous, healthy wife, when the offense herein charged was committed.
In his next to his last brief, appellant contended with all positiveness, in effect, that it was only "where a direct accusation of guilt is made to a defendant in his presence and is heard and comprehended by him, and goes undenied, that this act and fact may be shown as in the nature of an admission," and that such undenied accusation to be admissible must be "made in thedirect personal presence of the accused," *525 and that "there is no authority sustaining a rule" that his failure to answer a letter received by him so accusing him denying such accusation, is admissible. He pressed this point vigorously in argument and cited some authorities, which he claimed sustained his position.
In justice to him, it must be stated that in his last brief filed he seemed to recede from his above position, and concede, in effect, that such accusing letter unanswered denying such accusation, under certain circumstances, would be admissible as an admission of guilt, and cites authorities to that effect; but contends, that the circumstances of this case are not such as authorized said letter in evidence. At least I so understand his briefs and positions. But whether I correctly state or understand him, or not, I think, both by reason and authority, said letter, under the circumstances of this case, was clearly admissible. I will discuss the question from that standpoint.
It is the settled law of this State that when a verbal accusation of guilt is directly made to a defendant in his presence and hearing, and is understood by him, and he does not then and there deny the accusation but remains silent, said accusation and his silence are pertinent evidence against him as an admission or confession to show his guilt. This rule is established by many decisions of this court, uniformly so holding. It is unnecessary to collate them. But see LaGrone v. State, 61 Tex.Crim. Rep.; Davis v. State,
The correct rule on this point is also tersely stated in an elaborate and clear note in 25 L.R.A. (N.S.), 543, where a number of cases from this and other States in point are cited, as follows: "The rule has been broadly and generally asserted that statements made in the presence of a person accused of crime, and not denied by him, must be taken as adopted by him. . . . And that they are competent evidence against him as an indication of guilt. . . ."
We understand appellant concedes the law as stated as to oral accusations. To my mind there are stronger reasons for written accusations unanswered and undenied being admissible in some instances than oral ones. But first to the authorities.
1 Greenleaf on Evidence (13th ed.), sec. 198, says: "Thepossession of documents, also, or the fact of constant access to them, sometimes affords ground for affecting parties with an implied admission of the statements contained in them. Thus, . . . the possession of letters, and the like, — are circumstances from which admissions by acquiescence may be inferred. . . ."
1 Wig. on Ev., sec. 260, says: "The possession of a document is an important and often the only circumstance to show that its possessor has by reading it become aware of its contents. . . . This use of such evidence needs, however, to be distinguished from its use for other purposes, which are frequently associated in the same litigation; for it may be used to evidence an assent to the document's contents, or an admission of their truth." *526
2 Jones on Ev. (1413 ed.), sec. 269, p. 493, says: "Letterswritten to a party and received by him may, under some circumstances, be read in evidence against him, but before they can be received as admissions against him, there must be some evidence besides mere possession showing acquiescence in their contents, as proof of some act or reply or statement."
16 Cyc., 960, says: "The general rule is that omission to answer a written communication is not evidence of the truth of the facts therein stated, and that under ordinary circumstances a party is not required to reply to a letter containing false statements of fact. There are circumstances, however, under which unanswered letters are competent evidence of admission by acquiescence in the statements therein contained; as when the party receiving a letter has in any way invited the same, or when there is any ground to infer that he has acted on the letter by partly answering or otherwise recognizing it."
2 Wh. Cr. Ev. (10th. ed.), sec. 682, after saying, in effect, the mere finding of an unanswered and unacknowledged letter in one's custody, is not sufficient for its admission against him, says: "It is otherwise, however, when the party addressed in anyway invited the sending to him of the letter; or where there isground to infer he acted on the letter." It is useless to multiply authorities. They are all to the same effect.
Mr. Wigmore's recent work on Evidence is regarded by most as the best and most thorough ever written on the subject. In addition to what I have quoted from him in volume 1, he treats the subject in detail in volume 2, and more so than any other author. In section 1073, under the heads of "Writing sent to the Party, or Found in his Possession: Unanswered Letter": he treats the subject at length. He clearly lays down the propositions, and cites cases in point clearly supporting him, to the effect that a letter or document found in a party's possession accusing him of committing a certain crime unanswered or undenied is admissible against him as an admission of his guilt. He propounds the question: Is the party's possession of a third person's document "sufficient to justify an inference of assent to the statements contained therein?" And answers: "It is easy to imagine instances in which such an inference would be fallacious. Yet, since the party may always exculpate himself and disown the inference by proving the true reason for his retention of the document, the question remains whether the mere fact of possession ought not to suffice at the outset to make the document receivable, subject to explanations that may later be made. This question was in orthodox practice answered in the affirmative." Again he says: "The failure to reply to a writtencommunication may sometimes suffice to permit an inference of the party's assent to the correctness of the statements made therein upon the general principle of (sec. 1071) `silence gives consent.'" I think it unnecessary to cite and quote from the cases he cites in his notes. Suffice it to say they are from some of the greatest judges and courts, and clearly sustain him. *527
All the authors and judges writing on the point mention instances and give certain circumstances wherein such a letter would be inadmissible, but they are all very different from the circumstances and facts of this case; and none of them hold that under such facts and circumstances as shown in this case would the letter be inadmissible, but, on the contrary, their effect would be that such letter is admissible as an admission of appellant.
I will give only some of the facts and circumstances on this point. In doing so, it will be necessary to repeat some already stated. Cassie had been constantly and exclusively in appellant's care, custody and control since she was fifteen or sixteen years old — some three or four years. She had lived with him all these years. It was his duty to shield and protect her from harm and injury, and especially protect her in her virtue and chastity, which is the most sacred thing to every woman. Woman's virtue is the most sacred thing to every man, too. He, and he alone, had had the opportunity to have had sexual intercourse with her. Her menses did not come on at the regular time. She told him, but told neither her sister nor grandmother, who were both in his house at the time. He promptly took her to a doctor to see if she was pregnant, but it was too soon after the act of sexual intercourse for the doctor to ascertain by the very casual examination he gave her whether she was then pregnant or not. Appellant swore she was sick — her womanly periods had stopped. She told him, in effect, she was pregnant. He sent her far away in a distant county to be confined. At no time did she tell any other except him that she was pregnant, or even that she thought she was. It was more than a month after she reached her father's before the doctor there or her father, learned she was pregnant. She was then about six months "gone." The doctor at once advised her to go to a maternity home to be confined and effectively conceal her condition and write to the father of her babe for money to do this. She immediately wrote to appellant for the money, telling him it was to go to a maternity home. He received and answered her letter. He knew she could go to a maternity home for no other purpose than to be confined and dispose of her illegitimate babe. Such homes are for no other purpose. Her father and doctor tried to get her to tell who was the man who had gotten her pregnant. She peremptorily refused to tell. From the facts and circumstances then known to her father, he was certain appellant, and no other, was the man, and he at once wrote to him in language no one could misunderstand, denouncing him as her seducer and telling him he knew he was responsible for her condition, and calling on him "to come here at once," pay the expenses, etc. Immediately upon receiving this letter he first went to his friends, then "post haste" to his lawyer, with it. His lawyer at once wrote or advised an answer, which he signed and sent, denying his guilt and telling him, "I desire not to hear from you again." But he did hear again. In about a week her father wrote him he was not surprised at his denial, but, if he was not the man, "why was there *528 so much secrecy," and denouncing in unmeasured language the villain who took advantage of his child, and "when you prove to me you are not guilty (how?) by helping to bring the guilty to justice, then I am willing to walk from here there and get down on my knees at your feet and ask your forgiveness." Under the circumstances, if he had not been the guilty one, every impulse and dictate of honest manhood would have irresistibly compelled him to hasten to Cassie and her father, and not only establish at once to her father his innocence, but also help "to bring the guilty one to justice." He did neither — did absolutely nothing to ferret out, if another, and bring that other to justice. He swore he made no reply to her father's last letter and made no explanation whatever to him.
The said letter, the admission in evidence of which is under discussion, was directly and expressly invited by appellant, and after its receipt, was unquestionably acted upon by him. On November 22nd, he wrote Cassie: "Will answer your letter which came to hand a few days ago. Was glad to hear from you but sorry you had been sick." (She had been sick from confinement on October 29th.) . . . "I am the same fellow (as) when you saw me last, and I want to noe (know) now Cassie (if) you want to come home, an (and) I want to know what is the matter with you, an (and) just as soon as I get the news I will send you the money to come on, an (and) noebody never has read your letters and wont. Your Pa has rote some letters here an (and) I want to noe (know) if you are all right an (and) I want to know just what is the matter." On November 24th, immediately upon receipt of this letter, as therein invited and requested, she answered him. The reading of her answer just here, which is copied in full in the original opinion, will demonstrate that she therein in plain and unequivocal language accused him directly of the crime charged herein. It needs no comment to show this. That he then acted on what she stated therein, has been clearly shown above. From the very frequent correspondence between them, the jury was clearly justified to believe he answered her letter, and there can be no doubt that he did. So that under all the authorities her letter and his failure to answer and deny her accusation was without doubt admissible as an admission by him of his guilt.
The only other question to be considered is his attack on the court's charge about this letter. I copied this charge in the original opinion. As I have shown, this letter was unquestionably properly admitted to impeach Cassie Dunn, if for no other purpose. Its statements directly and positively charged appellant with being the father of her child and guilty of incest with her, for which he was indicted and then on trial. He swore he did not receive the letter. The other testimony was amply sufficient to show that this testimony by him was false, and that he did receive the letter. The court, however, could not himself decide that appellant's testimony was false, and that he did receive the letter, but it was imperative upon the court to submit that question to the jury, *529 made so by appellant himself. And it was necessary for the court to submit it on both theories — one, in case he had not received it, the other, in case he had received it. The court, in said charge, in very clear, apt and appropriate language, which could not be misunderstood, did submit both theories. The charge is copied in full in the original opinion. It is in a separate paragraph. Appellant made no objection to the first part of this charge. He objected to the last three lines of it only, beginning with the word "however." The court qualified and explained his bill presenting this question, as follows: "I desire to state that the charge in question was one given to the jury for the purpose of protecting the defendant's rights before the jury in their deliberations, in the event they should find that the letter in question was not received by him. The court did not inform the jury, as is contended by the defendant in the bill, that the letter was a criminative fact against the defendant, nor did it charge or intimate that said letter proved defendant's guilt; on the contrary, the court told the jury that it was for the jury to determine what weight they would give, if any, to said letter, calling their attention to the fact that the jury were the exclusive judges of the facts proven, of the credibility of the witnesses and of the weight to be given to their testimony. I thought the charge on the whole was a proper one on the subject in question, and it was designed and intended for the benefit of the defendant's rights and to safeguard the same before the jury."
It is undoubtedly the settled law of this State, established by a great many decisions of this court, and not questioned by any of them, as tersely and correctly stated by Mr. Branch in his Criminal Law, section 873, page 556, as follows: "Proof of contradictory statements offered by the State to impeach a witness, where the same could be used by the jury to establish any fact in the case, other than as affecting the credibility of the witness, should be limited in the charge. . . . If the State impeaches her own witness by proof of contradictory statements, and the same could be used by the jury to establish any fact in the case, other than the credibility of the witness, such proof should be limited in the charge. . . ." This doctrine is held and applied all the time by this court. Mr. Branch cites some of the cases only. A great many others could be cited but it is unnecessary. Cassie Dunn's statements in the letter could have been used by the jury to directly establish that appellant was guilty of incest with her. Hence, it was the imperative duty of the trial judge in his charge to tell the jury, as he did, that: "If you do not believe from the evidence, beyond a reasonable doubt, that defendant received said letter, you will not consider it for any purpose, except to aid you, if it does, in determining the credibility of Cassie Dunn, but may consider it for that purpose only." It thus being necessary for the court to tell the jury what they could do about considering the letter if not received, it became his further duty to tell them what they were authorized to do if it had been *530 received. The State is just as much entitled to a full and fair charge presenting all the contingencies as the defendant. So that I think it was the duty of the judge to tell the jury, as he did: "However, if said letter was received by the defendant, you will determine the weight you will give to it under the instructions given you in the last paragraph of this charge." Said last paragraph was: "You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to the testimony, but you are bound to receive the law from the court, which is herein given you, and be governed thereby." This should always be given in a felony case (sec. 789, Wh. Ann. C.C.P.) and is universally approved by this court.
I do not understand how anyone could seriously contend that said sentence beginning with "however," is on the weight of the evidence. It is not, and can not be even misconstrued to be. There is no intimation, directly or indirectly, by the judge ofhis opinion of the letter, nor of what weight, if any, he thought should be given to it by the jury. He told them the law — "You
are the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to the testimony." He left all to the jury and in no way intimated what he even thought about it. Such a charge as this has expressly been held proper by this court in Chas. H. Proctor v. State,
Appellant cites and relies upon Rice v. State,
Addendum
This case was affirmed some time ago, and Presiding Judge Prendergast in his opinion explains, in a great measure, the delay in acting on the motion for a rehearing. The writer of this opinion wants to admit that he conferred with and discussed with the Presiding Judge the opinion in this case before it was handed down, and he at that time concurred with him in the opinion that the case should be affirmed, but a further study of the record, the briefs filed by able counsel, and the authorities bearing on the questions involved, has led him to the opinion that he was in error. If he had written the original opinion he would feel less reluctance in now holding that the record presents error, because he, in a measure, feels that he may be in part responsible for the errors in which he now believes appear in the holding in the original opinion, and he wishes to assume his full responsibility for such opinion. Yet, while doing so, he feels it his duty, as a member of this court, when convinced of his error, he should unhesitatingly admit his error, for every man in this State, regardless of how guilty he may be (if guilty he be) is entitled to a trial in accordance with the settled rules of law, and if he has not received such a trial, to have his case reversed in order that he may be accorded a fair and impartial trial, and his guilt or innocence passed on by a jury only on evidence legally admissible.
We think the court erred in holding that the State could impeach its witness Miss Cassie Dunn. The State called her as its first witness and had her testify:
"My name is Miss Cassie Dunn. I suppose I am a daughter of Tom Dunn. My mother was Bettie Dunn. She was a sister to Alfred Hollingsworth. For the past four or five years I have been living and making my home with Uncle Alfred Hollingsworth. He lives up close to Prairie View, up close to Hurst in Coryell County. When I went to Uncle Alfred's to live the family consisted of himself and two boys, Roy and Joe. Roy and Joe stayed at home two years. When the boys married Joe left home and Joe went right straight and Roy stayed at home till January. They have been married two years last October. Yes, I am speaking of the old man's two boys, Roy and Joe. They married in about October, 1912. They have been living to themselves ever since they were married except Roy stayed there at his father's *509 from October to January and then left. Roy left there January 1, 1913. He has been away the first of this year makes two years. After the boys left Uncle Alfred and myself and Fannie constituted the family. Fannie was not there till two years ago last August. Fannie came there in August before the boys married in October. Fannie came there two years ago last August. She came in August, 1912. I am twenty years old. Was twenty years old the 18th day of last June. Fannie and I both did the housekeeping and cooking and washing dishes and milking and things of that kind for Uncle Alfred. We both did it together. Sometimes Fannie would leave there and go to her other uncles and visit, but she did not go very often and did not stay very long. Sometimes she would go and stay a week or two at a time. She did not do that very often. My uncle had five brothers that lived up in that neighborhood and Fannie would go and stay with them whenever she wanted to. When Fannie would go away that would leave Uncle Alfred and myself there alone. When Fannie was gone I did the milking and cooking. I kept house and made up the beds, etc. I attended to all that when she was not there. When Fannie was not there she did not do any of the work and of course I did it, but when she was there she assisted me in it. I did not during that time have any sweethearts or beaux that went with me. Did not have any beaux or keep company with anyone. I went to parties and gatherings and singings and things of that kind during that time, but goodness I don't know how often I went to them. I went a good deal, for a while and then I did not go so often but I went enough I suppose. I went a good deal the first two years, before the boys married. After the boys married I did not go so much because I did not have anybody to go with me. When I did go Uncle Alfred and first one and then another would carry me. Uncle Alfred carried me to church but he did not carry me to parties. He would carry me to town occasionally. We lived four or five miles from Turnersville. That is not where we did our trading. We did it at Hurst and Clifton. Clifton was about fifteen miles from where we lived. That is a larger town than Turnersville. I went home and left my Uncle Alfred's house on the 19th day of June, 1914. Uncle Alfred treated me just like he would one of his own children all the time I lived there. He treated me right — just like he would his own girl. Anything I wanted I got it. Dresses or anything else. Q. Do you love your Uncle Alfred? A. I love every one of my uncles. Yes, I expect I love Uncle Alfred better than any of the balance of my uncles. I have loved him all the time. I love every one of my uncles.
"I was pregnant when I went home in June, 1914. I had been at home about a month before my people found out that I was pregnant. Dr. Bailey is the man that told them about me being pregnant. I was sick and we called in Dr. Bailey to wait on me and he told them what was the matter with me. I have a child now. It was born the 29th of October." This was all her testimony on direct examination.
Why did the State call this witness and have her testify that she *510 lived with appellant; that she loved him better than she did either one of her other uncles; that she and her sister lived alone with appellant. That while she had lived with her uncle (appellant) she had no beaux or sweethearts; that she was pregnant when she left appellant's home in June, and that a child was born to her on the 29th of October, etc.
By the indictment appellant was charged with having incestuous intercourse with this witness — his niece. Were not all the above facts and circumstances elicited from the girl to prove by circumstantial evidence that appellant was the father of her child; that no other person had opportunity, and would not the evidence thus adduced by the State have a strong tendency to show that he was guilty of the charge, if no other testimony was adduced from her? The State having before the trial been informed by the witness that she would testify that another was the father of the child, and appellant had never had intercourse with her, could it adroitly, by not asking her who was the father of the child, adduce testimony from her that would fasten the crime on him, and appellant not be permitted on cross-examination to ask her who was the father of her child and elicit from her the following facts: "Henry Dollins is the father of my child. My uncle (appellant) never did have any illicit intercourse with me," without making the girl his (appellant's) witness? If the State had not known the girl would so testify before they called her as a witness, there is no doubt they could impeach her as to those statements. But the record places it beyond question, and it is in no way controverted that the girl had told the district attorney the week prior that she would testify that Henry Dollins was the father of her child, and her uncle, appellant, had never at any time had intercourse with her, and this was the reason the State avoided asking that question, yet the State called her as a witness and proved all other and different facts it could by her that would tend to fasten the crime on appellant. She testified: "That night when you and Mr. Cobb and my uncle and father all came down there with Mr. Calloway, the district attorney, you all left the room and left Mr. Calloway and I in the room to talk the matter over. I told Mr. Calloway then and there that Henry Dollins was responsible and that my uncle was not responsible." When can the State impeach its own witness? At common law it could never do so, but by virtue of our statute, article 815, it is provided, when facts stated by the witness are injurious to the cause of the party offering the witness, he may be impeached as to such testimony. The only case which we have found that would seem to sanction the action of the trial court in permitting Miss Dunn to be impeached is Blake v. State,
It may be that appellant is guilty, as is so strenuously insisted on by our Presiding Judge in his opinion overruling the motion for a rehearing. This we do not care to discuss, nor express an opinion on, but we do hold that no person's liberty ought to be taken away from him and he branded as a felon upon the unsworn statement of a girl contained in a letter, which she swears is not true, and which, in affidavit attached to a motion for a new trial, she swears she was compelled to write by her father while she lay sick shortly after child birth, and which she says was written to obtain money from appellant. The law does not sanction blackmail any more than it does the crime of incest. We do not think anyone could read this record and say that unless the jury had been authorized to consider this letter of Cassie Dunn as evidence of the guilt of appellant, the jury would beyond question have found appellant guilty and assessed against him the highest penalty known to the law for the crime of incest.
Appellant is a man fifty-nine years of age. He had lived in the same community for twenty-eight years immediately preceding his trial. His wife had been dead for twenty years. He had raised a family of boys and girls, and when he offered to prove by his neighbors that during all these years he had lived the life of a peaceable, law-abiding citizen and a virtuous man, the State admitted as a fact "that the defendant has been a peaceable, law-abiding, quiet citizen all the time that he lived in that community; that his reputation up to the time of this occurrence has been that of an honest, upright and virtuous citizen." It may be that in his old age he has committed this crime, and if so the punishment is none too severe, but before the writer can consent that his reputation of a lifetime of upright citizenship be taken from him and he incarcerated in prison walls, it must be done upon testimony which the law says is legal and competent and not upon unsworn statements of the girl, which she swears on the trial are false and untrue.
There are other questions in the case, and especially the first application for a continuance, which the writer thinks present error, but we do not deem it necessary to discuss them. The witnesses for whom the continuance was sought can be had on another trial, if granted, and if not a discussion of that question would be of no avail.
Being of the opinion that at least that portion of the charge of the court which authorized the jury to consider the letter written by the girl as evidence of appellant's guilt, under the facts in this case, presents *515 error for which the judgment should be reversed, we think the motion for a rehearing should be granted and the judgment reversed and remanded for another trial.
As before stated, upon the other questions presented not herein discussed, the writer expresses no opinion, as he does not deem them essential to a disposition of the case.
The motion for a rehearing is granted, the affirmance is set aside, and the judgment is reversed and the cause remanded.
Reversed and remanded.
Addendum
I agree to the reversal.
