27 Tex. Ct. App. 163 | Tex. App. | 1889
Appellant’s record now before us presents a second appeal taken by him in this case. He has twice been convicted of rape—his punishment the first time being assessed at imprisonment in the penitentiary forf/ninetynine years, and on the second trial, from which this appeal is taken, there is an assessment of the death penalty as his punishment. (Johnson v. The State, 21 Texas Ct. App., 368.)
In the view we take of the present record, and of the duty devolving upon us as to the disposition to be made by us of the ■case here presented, it is unnecessary, and would perhaps be profitless to notice the questions arising upon the rulings of the court in relation to matters occurring preliminary to the trial upon the merits; since it is not probable that they will again arise upon another trial.
One of the most important issues which arose upon the trial in the court below was as to the identity of the defendant as the party who had committed the crime. Whilst the prosecutrix had sworn positively to the identity of the defendant as the man who ravished her, she said, nevertheless as positively that “if this man (defendant) had a mustache on the twenty-sixth day of January, 1886 (the day she was ravished), then he is not the man that ravished me.” On this issue, thus squarely made, defendant had produced a number of witnesses, white as well as black, and some of them men of prominence, whose testimony was almost positive to the fact that defendant did wear a mustache on the twenty-sixth of January, 1886. And the same may be said with reference to the difference in the clothing worn by the ravisher and that worn by defendant. In other words in short, the effort of the defendant was to meet every part and portion of the testimony of the prosecutrix descriptive of the identity of the party who outraged her, and to show that it was a case of mistaken identity with her, and that it was impossible he could have been the guilty party.
In this attitude of the case, the State, over objéctions of defend-ant, was permitted to cross examine the defendant’s witness Robert Ford as follows, viz.:
Answer: “I never, at any time, received a letter from the defendant, after or before said alleged rape, nor did I receive any letter from him inquiring of its commission or asking if he was accused of it.”
Q. “Did you not, after said rape, receive a letter purporting to come from defendant, making a statement about the rape, or inquiring if defendant was accused of it?”
A. “I never received any letter from defendant, or from any one else, or purporting to come from defendant, making a statement about the rape, or inquiring if defendant was accused ©f it. I do not read or write. I do not know defendant’s hand writing.”'
Q. “Did you not, in Brenham, after said rape, request Wash Boulding, Jr,, to read a letter for you, and did he not then read, to you a letter from the defendant to you, in which defendant stated that he had committed the rape, and inquiring of you who twas suspected of its commission, and if he was accused of it?”
A. “No. Wash Boulding never read any such letter for-me nor any other letter for me, either after the rape or before it. I never received such a letter or any letter from defendant or any one else, in reference to the rape. Never received any letter from defendant, or purporting to be from him, after he left my house, after the alleged rape.”
“Which testimony was objected to by the defendant at the time it was offered, on the grounds: (1) That the letter (if such ever existed) was the best evidence; that no effort had been shown by the State to procure or produce such letter upon the trial, or to prove its loss; and that the testimony was secondary : (2) That the testimony was inadmissible because the execution of the letter in the defendant’s hand writing had not been shown, and no promise upon the part of the State was made to show such fact: (3) That said testimony was illegal and irrelevant to the issue of defendant’s guilt, and was prejudicial to the defendant.
“But the court overruled said objections and admitted said testimony to the jury, to which decision of the court the defendant then duly excepted; and thereafter the defendant
Manifestly the object of this method of examination of the witness was to impress the jury with the idea that the witness; had received a letter from defendant, in which the latter confessed that he had committed the crime. If the object was; to prove the fact that such a letter had actually been written and), received, then the proper practice would have been, in the first, place, to have summoned the witness with a subpoena ducestecum, or notice, to produce the letter in court. (1 Greenlf. Ev., 13 Ed., secs. 557, 558, 559, 560.) Failing or refusing to produce it, the State then might have proven the fact by him, if a fact, that he did receive a letter, and if the witness knew that defendant wrote it, from his knowledge of his handwriting, or otherwise, he might also prove that fact. But, unless the letter was lost or mislaid so that it could not be produced, its, contents even then could not be proven by the parol evidence; of the witness, the letter itself being the best evidence of its; contents so long as it was in existence.
Again, if the object was to impeach the witness, then the fact that he had or had not received a letter from defendant, which was the only fact about which the preliminary inquiry and predicate were allowable (Walker v. The State, 6 Texas Ct. App., 577), would be wholly immaterial in the case. And the witness having answered that" question in the negative, that would be an end of the investigation, under the well established rule that when a witness is cross examined on a matter collateral to the issue his answer can not be subsequently contradicted by the party putting the question.” (Whart. Crim. Ev., 8 Ed., sec. 484; Brite v. The State, 30, Texas Ct. App, 368; Hart v. The State, 15 Texas Ct. App., 234; Johnson v. The State, 22 Texas Ct. App., 207; Rainey v. The State, 20 Texas Ct. App., 474.)
But the State did not stop the investigation of the matter-with the denial of the witness that he had ever received such a letter, but called Wash Boulding, Jr., to the stand to contradict and impeach the witness Ford in this matter. This was; in violation of the rule of evidence above quoted. This wit
It was most unfair and prejudicial to defendant’s rights to conduct the investigation with regard to this letter in the manner in which it was done. Ho doubt the jury were firmly impressed with the fact that defendant had written a letter to Ford in which he confessed his guilt of this most heinous crime. The character of the investigation and the facts allowed to be proven were calculated to have this effect, whether they did or not. They should not have been permitted in the first place, and in the second place the only possible, if at all possible, manner in which the error could have been retrieved and injury avoided, would have been for the court to have stricken out the illegal testimony and instructed the jury to disregard it, W© are constrained to repeat in this connection the remarks of Judge Willson in G-azley’s case, a case involving a crime of the same nature. He says, “in a case like this, the very mention of which arouses public indignation, and fires the minds and passions of a community with a desire for vénganos against the guilty party, the court and counsel engaged in the trial should be scrupulously cautious to accord to the defendants a fair and impartial trial, as free as possible from excitement or prejudice. There should be no clap trap or sharp practice made use of by counsel for the State. Ho improper means should be resorted to to prejudice the minds of the jury against the defendant in the remotest degree. Ho testimony should be offered on the part of the prosecution that is not relevant and legal.” (17 Texas Ct. App., 283.)
Where the testimony was so doubtfully "balanced as to the identity of defendant, who can say but that a bare intimatioa
A number of objections are strenuously urged to the charge of the court to the jury. One or more of the paragraphs may, we think, be properly held obnoxious to the criticisms made upon them. For instance, in the sixth paragraph the jury were instructed that “penetration is necessary to complete the offense, but penetration only is necessary to complete the offense.” It is declared by our statute that “penetration only is necessary to be proved upon a trial for rape.” (Penal Code, art. 532.) But this does not mean that proof of penetration alone will, in and of 'itself, be sufficient without proof of the other statutory evidence and' ingredients of the offense. The object of the declaration made in this article of the Code was simply to lay down one of the rules of evidence in cases of rape. Hr. Greenleaf says: “In the proof of carnal knowledge it was formerly held, though with considerable conflict of opinion, that there must be evidence both of penetration and of injection. But the doubts on this subject were put at rest in England by the statute of 9 George IV, c. 31, which enacted that the former'of the two facts was sufficient to constitute the offense. Statutes to the same effect have been passed in some of the United States.” (3 Greenl. Ev., 13 ed., sec. 210.) This is the object and purpose of our statute, to wit, that if penetration, which is essential to carnal knowledge, be proven, that will be sufficient, whether there be proof of injection or emission or not—the latter not being required to be proven.
Though such an instruction is in the language of the statute, and is abstractly correct law, it will be readily perceived that it is incomplete and calculated to mislead without some further explanation. Penetration alone is not the only proof necessary to complete the offense of rape. There must in addition be proof of want of consent of the woman, and that the act was accomplished by force, threats or fraud. (Penal Code, art. 528.)
Again, it occurs to us that the latter clause of the thirteenth paragraph is objectionable. The court thus instructs the jury, viz: “It is not sufficient, to secure a conviction for the State, to make out a prima facie case, but the guilt of the defendant must be shown beyond a reasonable doubt] and the failure or inability of the defendant to show his innocence does not lend any additional probative force to the incriminative facts, if any,,
Again, we are of opinion that the latter portion of the fourteenth paragraph of the charge may have operated to the prejudice of appellant. The instruction is in these words, viz: “The defendant is presumed to be innocent until his guilt is proved beyond a reasonable doubt; and if upon the whole evidence you have a reasonable doubt of his guilt you must acquit him, and not resolve the doubt by a mitigation of the punishmentThe italicized words may have influenced the jury to inflict, as they have done, the death penalty instead of the milder punishment authorized by law.
With regard to the reasonable doubt, as prescribed in our law by article 727 of the Penal Code, this court has time and again held that the language of this long standing provision law was advisedly selected to express the precise meaning of the maker. “Its entire context should be preserved, and attempts to paraphrase or supplement it in a charge to the jury tend to perplex the jury and breed error.” (Willson’s Crim. Stats., sec. 2426.)
For the errors we have discussed, the judgment Is reversed and the cause remanded for a new trial.
Reversed and remcmdedh
