Lights v. State
17 S.W. 428
Tex. App.
1886
Check Treatment
White, Presiding Judge.

This is an appeal from a judgment of conviction for assault with intent to rape. A motion made to quash the indictment was properly overruled, it being in all *313respects conformable to the approved precеdents. ‍​​‌‌‌‌​‌​​​‌‌‌‌‌‌​​‌​‌​​‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌​​​‌‍(Willson’s Criminal Forms, No. 358, p. 162.)

On the trial the district attorney was permitted, over objection of defendant, to aslс defendant’s witness, George Harrison, “if he had not been in the penitentiary, and if he was not sent up from Havasotа, Grimes county?” It is insisted tliat such questions were inadmissible for any purpose. If to show incompetency, that then the rеcord of conviction was the only legal evidence (Code Crim Proc., Art. 644; Cooper v. The State, 7 Texas Ct. App., 179); if to discredit the witness, then such method was incompetent.

In Ivy v. The State, 41 Texas, 35, where the witnesses were permitted to be askеd where they came from and to answer jihat they came from jail, the court say: “If the object was to impeach the credit of the witnesses, before the jury, it was not competent for that purpose, and they could not be discredited in that mode. ‍​​‌‌‌‌​‌​​​‌‌‌‌‌‌​​‌​‌​​‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌​​​‌‍However that may have been, the question having been asked and answered, the witnesses should have been permitted to state on what charge and under what circumstances they were сommitted, so that the jury might judge of the circumstances, in considering and weighing their evidence.”

Mr. Wharton says: “In a leading сase, Lord Ellenborough, chief justice, compelled a witness to answer whether he had not been confinеd for theft in jail, and on the witness’s appealing to the court, said: 1 If you do not answer I will send you there.’ In this country therе has been some hesitation in permitting a question, the answer to which not merely imputes disgrace, but touches оn matter of record; but the tendency now is, if the question be given for the purpose of honestly discrediting a witness, tо require an answer:” (Whart. Cr. Ev., 8 ed., 474, and numerous authorities cited.)

In Real v. The People, 42 New York, 270, it was said by Grover, judge: “My conclusion is that a witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary, or state prison, or any other place that would tend to impair his credibility; and how much of his life he has pаssed away in such places. When the ‍​​‌‌‌‌​‌​​​‌‌‌‌‌‌​​‌​‌​​‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌​​​‌‍inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply. This involves questions as to the jurisdiction and proceedings of a court, оf which fthe witness may not be competent to speak. This was the point involved in Griswold v. Newcomb, 24 New York, 298, and the only point in that *314case. Here the inquiry was simply whether, and how long, the witness had been in the penitentiary. This the witness knew, and could not be mistaken about. * * * ■ ' The extent of the cross-examination of this character is some what in the disсretion of the court, and must necessarily be so, to prevent abuse.”

In the State v. Pike, 65 Maine, 111, it was held that a witnеss, having testified on cross-examination that ‍​​‌‌‌‌​‌​​​‌‌‌‌‌‌​​‌​‌​​‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌​​​‌‍he had been in prison, could be asked what this was for. Ordinarily, convictions must be proved by record.

Under these authorities, we think it clear that the ruling, as quoted in Ivy v. The State, supra, is incorrect, and the doctrine as there announced upon this subject, will hereafter be considered as overrulеd. The court did not err in permitting the questions to be asked.

It was not error, as complained of in appellant’s fourth bill of exceptions, to permit Mrs. Elizabeth Franklin to testify to the statements made by Virginia Franklin, the prosecutrix, with regard to what had transpired, and as to her nervous ‍​​‌‌‌‌​‌​​​‌‌‌‌‌‌​​‌​‌​​‌‌​​‌​​​‌‌​‌​‌​‌‌​​‌​​​‌‍condition, and the swollen appearance of, and blood upon, her. wrist. These statements of the prosecutrix, and her appearance and conditiоn, were heard and seen by the witness in a very few moments after the occurrence, and were res gestee. It is always pеrmissible in such cases to show that the prosecutrix did, within a reasonable time, and upon the first opportunity, discover and make known the offense which had been perpetrated upon her. It has, therefore, been univеrsally held, “that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurence, may be proved аs original evidence.” (Pefferling v. The State, 40 Texas, 486.)

Several objections by the appellant’s counsel are levelled at the charge of the court. It is claimed that the court neither defined nor informed the jury as to the сonstituent elements of rape. It has never been held that the statutory definition of an offense is essentially rеquisite in the charge, provided the constituent elements are so charged as that the jury are required to find their existence as a prerequisite to conviction. In this case the jury were charged, after having been previously instructed as to what constituted an assault, that, “ where a male person makes an assault on a wоman, with intent then and there, by force, to have carnal knowledge of such woman, without the consent and *315against the will of the woman, such assault would be an assault with intent to rape.” This sufficiently instructed them in the cardinal elements of rape. (Penal Code, Art. 528.)

Opinion delivered May 8, 1886.

In so far as the other objections to the charge which are specially pointed out in the bills of exceptions and brief of counsel for appellant are concernеd, we do not consider them well taken. We have found no reversible error presented in the record before us, and the judgment is therefore affirmed.

Affirmed.