*1 year previous lant at a return time a little more than a to the qualification the indictment to this bill the this case. As a says defendant, cross-examination, inquired court prosecutrix if she had an of intercourse before ever the time testified her on examination. An examina- direct testimony tion of the and of com- bill the record shows that the plained following admitted this cross-examination. proper question, defendant asked the it is that the state
go fully developed. into the matter facts further and have the judgment We find no reversible error and trial accordingly court is affirmed.
ON MOTION FOR REHEARING.
WOODLEY, Judge. again
Appellant urges that the evidence is insufficient sustain the verdict. He further insists that we erred in over- ruling relating exception bills of prosecutrix as to a act of intercourse with year prior about upon by to the act relied the state. We remain convinced sufficient, evidence properly disposed original the case was opinion. of in our
Appellant’s rehearing motion for is overruled.
Opinion approved by the court. Leroy alias John
Arthur Johns, L. Crow v. State. January 17, 1951. No. 24968. Rehearing 14,1951. Denied March *2 appellant. Bader, T. B. Attorney, B. Wilson, Jr., District William Criminal
Will Attorney, Dal Potts, District Henley Assistants S. Charles Attorney, Austin, for the las, George Blackburn, P. State’s state. Presiding Judge.
GRAVES, charge rape under the This guilty appellant upon was found years, a trial thereof appeals. prison, and he given penalty life term in Johns, Mae The shows girl’s occurrence. at the time of the three months appellant died some mother was married to by the girl’s a while reared was for birth. old. nine She mother until she was about defendant’s always step- stepfather. appellant her When told that died, and seemed lived father’s mother traveling Texas, pillar post in Iowa moved through many When different of the Union. states again, and years old, stepfather married was 10 or together, them about the new wife left for awhile lived but *3 wanderings Eventually, years in this their two they trial. complained of are came to the acts girl day place. a to have taken testified on July, 1949, stepfather with in her, had act of intercourse her parts, private
after a banana into her inserted he private parts, put and then a and thereafter weiner into Evidently ate both the banana and weiner. this latter the upon by punishment a for undis- was looked some They sleeping closed on reason. both unclothed and were gun at the time. had little and threatened bed He a anyone, to kill her if she However, and she it at time. told did tell days happened, police called two this told it. and them about brought
In the cross-examination of witness the defense brought up proposi- from out fact her that had police questioned tion of their married that if their acts, marriage wife, he no could show that this was but discussing marriage, had ever occurred. In testified as follows: marriage spoke “I told the the defendant several occasions. One reason for it I think was because join Army. place wanted I He me. didn’t no know that was reason because he told me. Another reason somebody he was find liv- afraid out our about was ing. that, He me too. told He was afraid would find out he having me, anybody was finds intercourse with and he said if out, marriage he would have a license to had that we gotten married.
“The defendant had had me before then. years started He intercourse with when I me was ten up City, in old. That was Souix He Iowa. would have inter- night. every night, every course with me other and sometimes just go school, want He didn’t me to seemed like.” voluntary
The state introduced in evidence statement of appellant as follows:
“My Leroy My name John is Crow. address Har- So. years Nebraska, I Ponca, wood. am I old. was born small town about 150 miles Lincoln. I lived in several other City, Iowa, towns in Nebraska and when I went to Sioux was around 11 or 12 old. When I 15 I left and did a lot was roaming In I around. 1935 met a named Fern woman Won- derly and married her in the latter Nov. A 5th. baby Fern, 29th, 1936, was born to March and Fern Shirley Aug. 22nd, 1936, named her Mae. On Fern died and my (Leona mother Dyer) Shirley took care until she died housekeeper kept 1945. After I hired her for Micky little while. In the month Nov. I married Bil- lingmeir lived Iowa. In month of Sioux Sept, Mickey away sleeping of 1947 from home and I was Shirley sleeping in one room and other room. I woke up Shirley loving I was in bed me me. night Shirley believe was the next went to bed me I had an intercourse with her. She was about 11 old then. I Mickey few more such relations with her came before Mickey In back. October I decided to towns, come to *4 Tyler, Texas. We went to several then went to acreage Texas. a We rented little there to chickens. In raise April Mickey (I the last of left me. don’t know where she went). Mickey sleeping again. Shirley After left I started January In Nov. we moved to and in Dallas we moved to 1509 Shirley and So. Harwood. I talked it over and decided that we get got enough. wanted to married when she I continued to sleep as man wife and the I last intercourse nights ago.” her was about four or five Exceptions of Bill a No. 1 is concerned with motion made by appellant’s attorneys they they in which assert going to appel- controvert of acts intercourse between stepdaughter, lant but that were informed that the prove prior state intended to acts of intercourse such between parties. trial, motion think This offered thereon, refusing ruling the court was correct to make 507 knowing way being offered, of had no to such since not. testimony admissible or would be whether this request- further motion to a Exceptions relates 2 of No. Bill attorneys offer that ing not to court to instruct state’s certain of the insertion portion relative to girl. motion was also private parts of articles into the way ground had no that he overruled the court not. were admissible or knowing acts at time whether such we think made the full statement Under gestae, portion the res upon appellant’s conduct day. having stated, me once had intercourse with “He * * * of me after the put weiner He inside this banana intercourse.” proposition. think the state Bill No. relates to the way may under right any fit it see has the its case regulations, proper cannot allowed rules and and an accused be proof. Beard or direct either the method manner of v. Cr. R. 869. Tex. S.W. propounded question
Bill No. relates to to this she stepfather had testified to unnatural of intercourse with acts thereafter, immediately his actions and she question, asked the Before “Have these acts occurred before?” answered, objection upon, thereto had been ruled “Yes, many ap- Whereupon times.” trial sustained court pellant’s objection jury thereto instructed not to con- Nevertheless, purpose. question sider the and answer for appellant’s attorneys question and answer insisted that could not be eliminated from the minds of the asked attempts mistrial. The bill herein make this girl’s refer in the insertion of banana and the weiner body, certify, but the trial court and refers us to refuses perusal, the statement of prior From its facts. seems to refer many, acts which there seemed to be Exceptions and this matter will further discussed in Bill of 6.No. proof
This last bill refers the introduction in further prosecu- acts intercourse had between the *5 stepfather trix in while as well as acts other states, beginning, seems, it while years other while ten she was living and in Sioux Iowa. proposition Bills 8 also Nos. involve the same relative to the admission in evidence of acts of intercourse in a charge rape age under of consent. the worthy It is here of note that did the while not take stand, guilty, plea witness he did enter a of not and it became duty State, the of the its case. Booker v. 562, 1033; 78, (2d) Tex. p. Cr. 63 S.W. also 42 Tex. Jur. see. 55.
The decisions of this court relative to the admission parties acts as prosecutions between the same entirely the instant one have been uniform and have caused some confusion in trials therefor. rape We do hold trials an accused for under
age determining falsity of consent and if material in the truth or accusations, of the there can taken into consideration parties regard associations between the and their evident each: evidencing charged for the other probability as act and the unnaturalness the accused’s toward vic- attitude lust, presence tim of his even of other acts of like char- acter prosecution on which one is based. quote again Scott, People 945, We v. Pac. set forth in 481, White v. 137 Tex. Cr. R. 131 S.W. as follows: “Any tending or declaration of defendant desire show purpose prosecu- or on his to have illicit relations with any representation trix or solicitation or made him excite victim, a similar desire of his overcome her or clearly wantonness, relevantly natural aversion to would be connected with crime and therefore admissible.” rape consent,
In matters of incest or under the importance often of to show the attitude between them and size, age strength parties, possible, relative demanding guidance position show how one in care person, duty adopted related has failed in has thereto, fondling unnatural attitude relative or other- wise, gratification evidences desire sexual toward such acts child or relative. therefore think that become material thus show admissible. them are That charge girl prior sexual conduct with this 10-year-old and since she admissible herein. *6 holding contrary without set- Any overruled to the will be cases ting herein. forth the to complains prosecutrix was allowed Bill No. 7 because marriage girl;
testify proposed “that appellant this that had to marriage out, anybody license have a he said finds impressed gotten married.” are that we had by appellant the fact was of the scheme which that such endeavoring consequences of protect himself from the young acts with at time to have this who was too such his marriage anyone. contracted S. C. Article qualification The trial court’s that to this bill evidences fact ground this matter rendered on the further that admissible by appellant’s previous this was initiated cross-exami- prosecutrix. nation proof by
Bill No. 8 on relates to the state re-direct prosecutrix interrogated examination of the taking place previous relative to acts of one charged in qualification this indictment. This bill’s testimony was, of the trial court shows line of opinion court, having proper, opened up of the trial been the defendant’s own cross-examination. As said us in the previous discussion of Bill No. we think ad- such acts were missible herein. begun It is true that appellant this record shows had
debauching younger, when she was three at years, of ten began and that such conduct in Sioux Iowa, living, up were then and continued date mentioned the indictment. complains Bill showing No. 9 as three
previous one, beyond the instant well the bar of the statute limitations, and therefore inadmissible. what we Under said, herein showing acts had value in the atti- appellant tude of being lustful, toward this as and cal- culated to lead her into a life of wantonness rather than the protection attitude of demanded him towards his deceased wife.
Bill objection No. 10 contains to a written statement signed by appellant objected forth set hereinabove and was grounds having denial made no guilt, stand, he not taken the witness that such con- inadmissible; again, fession was portions therefore that the girl prior acts of intercourse thereof that related to and his continuation forth in the indictment one set there therefrom because such acts should have been excluded charged. controverting denial of the act nor been no deny herein, previously we think the failure As held pre- charged its act with would not limit *7 issue, especially pertinent sentation of the facts by guilty plea entered of not had been virtue of the fact that by appellant. 146 Tex. Cr. Beard v. 869. S.W. certain remarks Further 12 and 13 relate to Bills Nos. attorney by district have been made assistant closing argument. place, In there is the first naught made, trial court to show that these remarks thereof; again, certifying he had no recollection think, made, they to have been same were do seem deliberations, materially jury in that could have affected the its importance as merit a reversal hereof. and were not of such nothing gone carefully record and find We have over this therein that call a reversal hereof. for judgment accordingly
The affirmed. rehearing. appellant’s
ON motion DAVIDSON, Judge. rehearing, appel-
By an able and written motion for well holding erred in evidence of lant insists that we admissible parties. acts of intercourse between original expressed opinion reached conclusion only the entire after a careful consideration of the court. a correct conclusion remain convinced that purpose useful to write further. reached. It would serve no agree Exception approving No. Bill of We cannot error in admit- the commission of trial court certified to intercourse, ting we hold to proof acts of admissible. rehearing The motion for is overruled.
Opinion approved the court.