McAdams v. State

24 Tex. Ct. App. 86 | Tex. App. | 1887

Hurt, Judge.

On the eleventh day of November, 1886, the grand jury of Shelby county indicted the following named persons for rape upon Minerva Horton, viz: John Riden, Pedly Riden, James Riden, Bud McAdams, Henry Chumley, Henry Becket, Will Booth and Wash Flournoy. On May 19, 1887, the case was called'for trial, whereupon counsel for the State entered nolle prosequi as to Will Booth, Henry Becket and Henry Chumley, and the defendant had these parties recognized as witnesses in his behalf. On May 20, 1887, the trial in fact began. On the morning of the next" day, appellant for the first time discovered that Will Booth had absented himself. He had an attachment promptly issued for the witness, returnable instanter. The attachment was returned not executed, because not found in the county. Appellant then moved to withdraw his announcement of ready for trial, setting forth the above facts, as well as what he expected to prove by Booth, in his application for continuance. These motions were overruled, and a bill of exceptions was taken thereto. Being convicted, appellant, among other things, urged this in his motion for new trial.

Minerva Horton, the prosecutrix, was the only witness to the rape. She swears positively to facts which, if true, make a plain case of rape. How, the indictment alleges that Booth, Becket, Chumley and Flournoy were guilty also of this offense, the charge against them, however, being dismissed. Minerva Horton does not implicate either of these parties, she swearing that the rape was committed by John Riden, Pedly Riden, Jim Riden and the defendant.

In his application to withdraw the announcement and continue the case, appellant swears that he expects to prove certain facts by Booth, who, it is alleged, was present at Horton’s at the time of the supposed rape. If true, evidently these facts are material. The witnesses, Chumley for the defendant, and Flournoy for the State, corroborate the facts proposed to be established by Will Booth. These two witnesses agree as far as they go. They agree that the party started together from Flournoy’s house, and as to the persons accompanying the party, to wit: Chumley, Jim Riden, Becket and defendant. Appellant expected to prove by Will Booth that John and Pedly Riden were not in the crowd. This expected proof is rendered probably true because Flournoy and Chumley swore they were not at Flournoy’s house, the point from which the party started, and Chumley swore that they were not at Horton’s with the persons who were there, he being one of the party.

How, it must be borne in mind that the prosecutrix swears positively that John and Pedly Riden, with McAdams and Jim Riden, outraged her. By other witnesses very cogent facts are established, tending to show that John and Pedly Riden were not at Horton’s on the night of the alleged rape. The testimony of Will Booth being thus material, not only for the purpose of showing that John and Pedly Riden were not at Horton’s, but to show that no rape was committed by any person, we must inquire into its probable truth.

Having referred above to some matters strongly tending to its corroboration, we briefly notice the statute bearing upon this subject. Applications for continuance are not granted as matters of right. If the application be overruled, and the defendant be convicted, a new trial should be granted, if it appears upon the trial that the evidence of the absent witnesses or witness was material, and that the facts set forth in the application are probably true. (Code Crim. Proc., art. 560, subdiv. 6.) Must the evidence on the trial affirmately show that the facts set forth in the application are probably true? If material and probably true, the case should not be continued, unless the facts are exculpatory or tend to discredit or explain the inculpatory facts. We therefore assert that, if the evidence adduced upon the trial shows the materiality and probable truth of the facts set forth in the application, the accused should not, in such case, be convicted. For, evidence tending to show the materiality and probable truth of the exculpatory facts is not sufficient to convict, of course. And if such a construction be given the statute, a new trial neither would nor should ever be granted, because of the overruling of the application for continuance, except in cases in which the evidence is insufficient to warrant a conviction—a case in which a new trial should be granted for want of sufficient evidence. These are the views of the writer alone.

We do not so construe the statute. If there is such a conflict between the inculpatory facts and those set forth in the application as to render it improbable that the facts stated in the application are material and probably true, the continuance should be refused, and hence a new trial based thereupon should also be refused. There must, however, not only be such a conflict, but the inculpatory facts must be so strong and convincing as to render the truth of the facts set forth in the application improbable. This is the rule announced in Hollis v. The State, 9 Texas Court of Appeals, 643.

We think it certain that appellant, Jim Riden, Will Booth, Henry Chumley and Henry Becket were at Horton’s at the time prosecutrix says she was outraged. But that they were there for the purpose of rape is only shown by the testimony of the prosecutrix. This case presents some remarkable features— features of fiendish brutality which are almost without parallel; if it be true that the outrage was committed as testified by the prosecutrix. According to ■ her testimony, the physical act of raping was perpetrated six times in succession so continuous that there was not a moment of intermission between the separate acts, these acts being participated in by four different persons, to wit: Bud McAdams, John Riden, Pedly Riden and Jim Riden.

Doctor Furlow, an expert witness, testified that in the case of a woman such as this, she being twenty-eight years old, one year married, and at the end of the third or fourth month of first pregnancy aborted, at the end of one year pregnant again and again threatened with abortion, and some three or four months advanced in pregnancy, that a woman of such antecedents, assaulted by four men with guns in hand and raped six times by them, would in ninety-nine cases out of a hundred abort again. This witness, with other physicians, states that under the above circumstances, abortion would not necessarily follow. Now, applying the 'rule above stated, we do not think that the criminating facts are of such a character as to render the truth of the facts set forth in the application for continuance improbable. It is true that appellant, with others, was at Horton’s for an illegal purpose. Appellant insists that they were there for the purpose of having some sport by frightening and running Horton from his home, and that this was the only purpose. The State contends that this was for the further purpose of ravishing his' wife, Minerva Horton. The testimony of Minerva Horton supports the theory; that of Wash Flournoy, Henry Chumley and thé facts set forth in the application for continuance, tend to support the theory of appellant. There is a direct conflict between Chumley and the prosecutrix, the former corroborating the facts stated in the application. •

The Assistant Attorney General urges, in support of the action of the court below, that Flournoy, Chumley and Booth rest under suspicion because they may be accomplices. As to Chumley and Booth, the State’s theory, based upon the evidence of the prosecutrix, is that they were not at Horton’s at all. The extent of Flournoy’s connection is that he was informed of the purpose and intention of the party to go to Horton’s, and that he furnished a pistol. There is no evidence that he knew of an intended rape.

The Assistant Attorney General, while conceding the materiality and probable truth of the facts set forth in the application, insists that the facts expected to be proved are cumulative, etc. In this there is a mistake, for by examination and comparison, it will be seen that Chumley swore that he left at a certain time with some of the party, leaving Booth with others. Booth covers this hiatus by showing that he was with the parties left by Chumley, and that there was no rape committed by his companions. We do not think that the doctrine of cumulative facts applies to motions for continuance, especially to a first application. This is a well known doctrine when considering an application for new trial upon merely disputed facts.

Opinion delivered October 26, 1887.

We conclude that the continuance should have been granted, or a new trial awarded. The judgment is reversed and the cause remanded.

Reversed and remanded.