265 S.W. 892 | Tex. Crim. App. | 1924
Appellant is condemned to five years in the penitentiary, under conviction for rape upon one Ruby Welsh. It is a consent case.
Prosecutrix is alleged to have been under the age of 18 years. The evidence is un-controverted that prosecutrix was over 15 and under 18 years of age. The defense is predicated upon the averment that she was not chaste.
Prosecutrix testified that the first time she met appellant she went with him in com
The court was in error in admitting evidence of subsequent acts of intercourse after the state had proven the one claimed by' it to have been the first, and as having occurred in “Hamilton’s pasture.” If appellant was guilty of rape, it was upon that act, and no prosecution for such crime could be predicated upon any act of intercourse occuring thereafter, because by pros-ecutrix’s own admission the act in “Hamilton’s pasture” was indulged in willingly by her, and, even if previous to that time she had never had intercourse with another man, her act in the pasture with appellant did render her unchaste. Article 1063, P. C.; Cloninger v. State, 91 Tex. Cr. R. 143, 237 S. W. 288; Pinkerton v. State, 92 Tex. Cr. R. 449, 244 S. W. 606; Norman v. State, 91 Tex. Cr. R. 486, 239 S. W. 976. As we understand the record the evidence of sub-, sequent carnal acts did not tend to solve any controverted issue. The only issues at all controverted in this case were whether the act in “Hamilton’s pasture” was the first with appellant, and whether before he had such relations with her at any time she had not already become unchaste by indulging with another man. Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905; Bradshaw v. State, 82 Tex. Cr. R. 351, 198 S. W. 942; Rosamond v. State, 94 Tex. Cr. R. 8, 249 S. W. 468; Rosamond v. State, 263 S. W. 1067.
The learned trial judge charged the jury that appellant could be convicted if at all only upon the act which occurred in “Hamilton’s pasture,” and limited their consideration of evidence of subsequent acts to determining whether appellant was entitled to a suspended sentence. Accused, having objected to proof of these subsequent acts of intercourse when the state offered it then followed it up by a timely exception to the charge, upon the ground that the court was authorizing use by the jury upon the issue of suspended sentence of evidence not admissible for that purpose. In this respect we think the court fell into error. Under the facts of this ease as developed we fail to perceive how the state could avail itself of subsequent acts for any purpose. As said before no prosecution for rape could be based thereon, and, if such acts constituted an offense of any kind, no criminal charge was ever legally instituted, so that they appear as evidence of specific acts of misconduct only, which are not provable upon the issue of suspended sentence. Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484; Fountain v. State, 90 Tex. Cr. R. 474, 241 S. W. 489; Waters v. State, 91 Tex. Cr. R. 592, 241 S. W. 496: Alexander v. State, 95 Tex. Cr. R. 497, 255 S. W. 408.
Some complaint is made that the charge is confusing, in that some paragraphs are in conflict with others. If any apparent confusion arises, it is because of the facts in evidence of several acts of intercourse. This condition will likely not arise upon another trial.
For the errors discussed, the judgment is reversed and the cause remanded.