256 S.W. 267 | Tex. Crim. App. | 1923
Lead Opinion
From a conviction in the District Court of Brazoria County of assault to rape, with punishment fixed at five years in the penitentiary, appellant appeals.
At the time of the alleged rape prosecutrix was a girl not quite thirteen years of age. She was living with her father, her mother being at work in West Columbia. On the 14th of April, 1920, her father left her at a house in which appellant lived, an aunt of *158 prosecutrix also residing there. Later during the day the aunt went away to a wedding leaving the child at the house. Prosecutrix testified that twice during the night appellant copulated with her; that it caused her much pain and bloodshed and that she begged him not to do it. The mother of prosecutrix testified that she came to Angleton where her daughter was on the morning of the 15th and found her locked in a room at the house where appellant lived, and that prosecutrix told her of the assault by appellant, and upon examination witness said she found the underclothing of the child bloody. In this she was corroborated by the child's father. They took the girl to a doctor that same day. On the trial of the case the doctor testified that the child's hymen had been torn; there were bruises of the parts and inflammatory "charges" (which we take to be a typographical error and that the doctor said "discharges"); that her private parts had been penetrated, and from his examination he would state that the penetration was recent; had been made within twenty-four hours prior to his examination; the private parts were bruised and sore and the hymen torn.
Appellant placed on the witness stand a boy of seventeen by the name of Harris and offered to prove by him that he had had intercourse with prosecutrix many times prior to the date of the alleged rape. The bill of exceptions complaining of the rejection of this testimony states that same was offered as explanatory of the testimony of the doctor as to the condition of the girl's privates; to contradict prosecutrix and her mother wherein they swore that she had not been allowed to associate with boys or men and had no opportunities for intercourse; and as affecting the credibility of prosecutrix and her mother; and for whatever it was worth. In sustaining the objection the learned trial judge offered to allow testimony of any intercourse had with prosecutrix within twenty-four hours prior to the alleged rape.
In Bice's case, 37 Tex.Crim. Rep., the prosecutrix swore to but one act of intercourse with the accused, and that it was her only act of that kind with anyone, and she said that her baby was the fruit of said act. Proof on behalf of appellant that prosecutrix had intercourse with others was rejected. In the opinion it is stated that the four grounds upon which said testimony was offered were: (1) to impeach prosecutrix who said she had known no other man; (2) to refute her claim that her pregnancy resulted from the single act with the accused; (3) the mitigation of punishment, and (4) generally for all purposes. In considering the matter this court held that such testimony should have been admitted upon the second ground mentioned. This amounts to a denial of its admissibility for the other reasons stated. If about the same time as claimed by prosecutrix to be that of her intercourse with accused from which *159
a child resulted, she claiming that she never had intercourse with any other person, proof of the fact that she had two such acts with another man at such time as that the child might reasonably result therefrom would appear cogent evidence to rebut the State's proof of pregnancy and child birth offered as corroborative of the prosecutrix. In Knowles v. State, 72 S.W. Rep., 398, under a similar state of facts, like evidence offered by the accused was held admissible on the authority of the Bice case, supra. In the opinion many authorities are cited holding such evidence inadmissible for impeachment, the matter inquired about being deemed immaterial, and the opinion goes no further than to hold the testimony admissible as rebutting the State's theory of corroboration by proof of pregnancy and the birth of the child. We are in accord with the proposition that any fact having probative force which rebuts testimony offered as material by the opposite side, is admissible. In Bader v. State,
The instant case has no feature involving the unchastity of a female between fifteen and eighteen years of age and Norman v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 991, seems to have no application.
If there was any evidence in this case showing that the State placed reliance for corroboration of the claim of rape of prosecutrix on facts showing merely penetration at some unknown time, we would hold the rejected testimony of Harris to be admissible as explanatory of such fact, and to that extent as rebutting the force of such corroborative testimony; but as we read this record all the testimony of the doctor related to a condition of the privates of the girl evidencing injury within twenty-four hours prior to his examination. There was no claim of any intercourse between Harris and the girl with anything like proximity to the date of the charge as laid. The testimony of Harris as it appears in the statement of facts entirely *161 negatives that idea. He said that he had gone to school with her when she lived at Clutes but that at the time he heard about this trouble, she was going to school in Angleton and that he had never gone to school at Angleton and had not seen her recently before that and did not know when he had seen her before that. As we understand this case we would not feel justified in reversing same for the refusal of the testimony of Harris that at some time — a year or more prior to the occurrence charged, he had had intercourse with the girl. The doctor's testimony cannot be fairly construed to point to an assault other than the one made not longer than a day before he saw the girl. His testimony would not be contradicted or weakened, or the testimony of the girl be legitimately contradicted by the testimony sought from Harris. Many cases are cited in Mr. Vernon's Ann. C.C.P., subdivision 38, under Art. 938, where this court has refused to reverse for the exclusion of evidence not deemed of sufficient materiality to injuriously affect the trial.
Nor do we deem the matter set out in appellant's bill of exceptions No. 2 wherein he complains that he was not allowed to prove by Oliver Gordon that he had seen Rosella Young associating with boys about her age at night-time under such circumstances as would give them opportunity to have intercourse with her, of any materiality or its rejection erroneous on the part of the learned trial judge.
We believe the evidence sufficient to support the conviction, and no reversible error appearing, an affirmance will be ordered.
Affirmed.
Addendum
Appellant but argues again the same authorities cited on original presentation each of which was discussed by us in our opinion. Appellant stresses chiefly Bader's case, supra. Examination of it discloses, in addition to what we have already said, that the court based its conclusion that the testimony as to acts of intercourse with prosecutrix by others than the accused, was admissible, largely upon the proposition that physicians who examined prosecutrix testified that they found a condition indicating frequent intercourse with some one prior to the time. No such condition appears in the instant case. We have carefully analyzed the law of the case in the light of the authorities and have tried to make a fair application to the facts but are unable to conclude ourselves in error in our former opinion.
The motion for rehearing will be overruled.
Overruled. *162