Polk v. StatePolk v. State
- Reporters:
- , ,
- Before:
- Hawkins
The rule laid down in Hunt v. State, 89 Texas Crim. Rep., 89, as to affidavits, was not intended to intimate by the expression, “by affidavits showing that he had been denied his bill;” that the bills as qualified could be impeached by affidavits, but that affidavits could be resorted to where the trial judge had declined to file his bills in lieu of those marked “refused,” in order to show that thereby appellant had been deprived of his bills altogether.
2.—Same—Duty of Trial Judge—Bill of Exception—Practice in Trial Court.—Ex parte Affidavit.
This court must assume that the trial judge will allow to an accused on trial fair, full and correct bills of exception reflecting truthfully the occurrence at the time, and when qualification or exрlanation is attempted and is accepted and filed by appellant as his bill of exception, the truth of the qualification or explanation cannot be impeached by an ex parte affidavit.
3.—Same—Bills of Exception—Rule Stated—Answer Must be Shown.
A bill of exceptions, taken to the refusal of the court to permit a witness to answer a question whether on direct or cross-examination must show
4.—Same—Evidence—Cross-Examination—Supporting Evidence—Rebuttal.
Where the prosecutrix, in trial for seduction, testified that she had submitted to carnal intercourse with defendant at a certain time and place under a promise of marriage, and counsel for defendant subjected her to a severe cross-examination, and by many questions imputed a want of chastity to her, all of which she denied, and defendant failed to place the witnesses on the stand by which he had laid a predicate to impeach her, there was no error to permit the State to do so and support the prosecuting witness’ denial of having carnal intercourse with them.
5.—Same—Supporting Testimony—Rule Stated—Prosecuting Witness—Stranger.
The rule that testimony in chief of any kind tending merely to support the credit of the witness is nоt to be heard except in reply to some matter previously given in evidence by the opposite party to impeach him, does not apply where the witness is a stranger in the community or occupies the relation to the case different from that of the ordinary witness. Following Rosa v. State, 86 Texas Crim. Rep., 646, and where the state‘s prosecuting witness was attacked not in her capacity as a witness, in the ordinary sense, but suggested matters, the truth of which, if established, would have left the State without a case, here was no error in permitting the State to call witnesses to refute the insinuations. Following Barber v. State, 69 S. W. Rep., 515.
6.—Same—Evidence—General Reputation—Subsequent Acts—Specific Acts.
Where, upоn trial of seduction, the prosecutrix testified that she gave birth to a child in a certain community at a certain time, and claimed defendant to be the father of the child, there was no error in refusing to permit the defense to show that the general reputation of prosecutrix for virtue and chastity was bad, during the time she lived in said community, as this was subsequent to the date of the seduction. Distinguishing Davis v. State, 36 Texas Crim. Rep., 550, and other cases. However, the same objection would not be tenable where specific acts of unchastity subsequent to the alleged seduction where sought to be shown.
7.—Same—Sufficiency of the Evidence—Corroboration of Accomplice.
Where, upon аppeal from a conviction of seduction, complaint was made in the motion for new trial that the evidence is insufficient support to the conviction in that the testimony of the prosecutrix was not sufficiently corroborated, but the record showed that the promise of marriage was fully proved and that the evidence corroborating the act of carnal intercourse was sufficiently shown by circumstantial evidence, there was no reversible error. Following Hinman v. State, 59 Texas Crim. Rep., 29, and other cases.
8.—Same—Rehearing—Corroboration—Sufficiency of the Evidence—Association.
Where appellant, in his motion for rehearing, contended that association between prosecutrix and appellant was the only thing shown in the testimony which could be considered as corroborative of her claim of carnal knowledge, but the evidence in the record showed a definitely proven engagement to marry followed sometime thereafter by a claim on the part
Appeal from the District Court of Sabine. Tried below before the Honorable J. T. Adams.
Appeal from a conviction of seduction; penalty, three years imprisonment in the penitentiary.
The opinion states the case.
Minton & Lewis, for appellant.—On question of insufficient corroboration. Wooley v. State, 96 S. W., 27; Snodgrass v. State, 31 id., 366; Nash v. State, 134 id., 709; Slaughter v. State, 218 id., 767; Gorzell v. State, 63 id., 126, and cases cited in opinion.
R. G. Storey, Assistant Attorney General, for the State.—On question of bills of exception: Jones v. State, 229 S. W. Rep., 865, and cases cited in opinion.
On question of corroboration: Bost v. State, 144 S. W. Rep., 589; Knight v. State, 144 id., 967; DeRossett v. State, 168 id., 531 and cases cited in opinion.
HAWKINS, JUDGE.—Conviction is for seduction. Punishment three years in the penitentiary.
An unfortunate situation seems to have arisen with reference to the bills of exception. Quite a number of bills appear in the record with qualifications and explanations appended. These bills were approved on the 25th day of June, 1921, and were filed the 7th day of July. One attorney representing appellant, on the 16th day of July 1921, makes an affidavit to the effect that the qualifications attached to the bills are not supported by the record; that they are unfair and unjust to appellant and attaches to the affidavit the question and answer statement of facts upon the trial of the case and asks the court to examine same in connection with his affidavit to verify the truth of his criticism of the qualifications. We had occasion in Jones v. State, 89 Texas Crim. Rep. 6, 229 S. W. Rep. 865 and in Hunt v. State, 89 Texas Crim. Rep. 89, 229 S. W. Rep. 869, to discuss at some length bills of exception and the effect of accepting the same with the qualifications attached thereto, and the proper procedure in the event attorneys declined to accept the bills as qualified. In the Hunt case, supra, the following language was used.
“The judge оught not to have filed the bills as qualified and explained by him without appellant agreed to accept them as so modified; however, when appellant ascertained that this had been done his proper course would have been a motion to withdraw them from the files and request the judge to cancel the qualifications and mark
them refused, with the further request that the judge prepare and file bills in lieu thereof; then if the judge declined to do so, he could have resorted to proper bystanders, or by affidavits showing that he had been denied his bills.”
It was not intended to intimate by the expression, “by affidavits showing that he had been denied his bills” that the bills as qualified could be imрeached by affidavits, but that affidavits could be resorted to where the trial judge had declined to file his bills in lieu of those marked refused in order to show that thereby appellant had been deprived of his bills altogether. In a later case, Donohue v. State, 90 Texas Crim. Rep. 541 (decided January 11th, 1922) we had occasion again at some length to express our views as to the proper procedure where the trial judge denied the occurrence of the matters to which the bill related, or denied that any exception had been taken at the time. Attorney for appellant, in requesting this court to examine in connection with his affidavit the entire question and answer record of the рroceedings upon the trial, is asking us to assume a burden which we must decline. The bills of exception, so far as the record discloses, were accepted by appellant with the qualifications and explanations attached thereto, and are filed as part of the record. We must assume that the trial judge will allow to an accused on trial fair, full and correct bills of exception reflecting truthfully the occurrence at the time. When this is attempted to be done by a qualification or explanation and is accepted and filed by appellant as his bill of exception the truth of the qualifications or explanations can not be impeached by an ex parte affidavit. It will, therefore, be necessary for us to consider the bills in connection with the qualifications and explanations attached.
By bills of exception Numbers 1, 2, 3 and 4 appellant complains that the court declined to permit prosecutrix on cross-examination to answer certain questions propounded to her by counsel for appellant. Regardless of the qualifications, the bills are totally insufficient to be considered by this court. None of them show what the expected answer of the witness would have been. In this state of the record it is impossible for the reviewing court to know whether any injury has been done, even though the testimony sought was not permitted. “A bill of exceptions taken to the refusal of the court to permit a witness to answer a question whether on direct or cross-examination must show what the answer of the witness would have been in order to entitle it to consideration on appeal.” Under this headnote on page 136 of Branch‘s Anno. P. C. are more than thirty cases cited supporting the note. Recent cases to the same effect are Lane v. State, 89 Texas Crim. Rep. 140, 229 S. W. Rep. 547; Hill v. State, 89 Texas Crim. Rep. 450, 230 S. W. Rep. 1005; Crisp v. State, 89 Texas Crim. Rep. 502, 231 S. W. Rep. 392.
Bills of exception Numbers 6, 7, 8 and 9 raise the same question and will be treated together. After prosecutrix had testified that she had submitted to carnal intercourse with appellant for the first time
“We do not understand that it is necessary to impeach a witness by controverting his statement, before he can be supported. If an unsuccessful attack is made to impeach a witness, he may be supported. Unquestionably the predicate was laid here for the contradiction of the witness. He did not absolutely deny making the
statement, but admitted making them in some qualified way. Consequently it would have been admissible for the defendant to have put on witnesses testifying that appellant had made the statement in the exact terms inquired about. If he had put on one or more witnesses who failed to impeach him, we take it that this abortive attempt would have authorized the witness to be supported. However, defendant did not go so far, but the effect of his attempt was to leave the witness under the imputation that he had made some such statement as that inquired about, in effect contravening or contradicting his evidence while on the stand. Under the circumstances, we believe it was competent for the State to show, in explanation of the witness’ answer, exactly what he said on that occasion, and how he came to say it.”
Unquestionably in the instant case while appellant did not undertake to prove the truth of the matters which prosecutrix denied, yet, the effect of his attempt by cross-examination was to leave the witness under the imputation that she had been having acts of intercourse with the parties inquired about, and was generally guilty of conduct indicating unchastity. We think no error was committed in allowing the State to call witnesses to refute the insinuations.
Prosecutrix testified that she became acquainted with appellant in February, 1919, at which time she was living with her father on what was known as the Boyett place; that the act of seduction occurred in May of that year; later on in the same month her family removed from the Boyett place to Lamerle. While living at Lamerle she became pregnant in February, 1920, and gave birth to a child in November of that year; prosecutrix claimed defendant to be the father of the child. After she had testified to these facts appellant offered to prove (bill of exception No. 5) by J. N. Hunter that the general reputation of prosecutrix for virtue and chastity was bad during the time she lived at Lamerle. This was subsequent to the date of the seduction and in a community where the pregnancy of prosecutrix became apparent and where she gave birth to the child. Objection was urged by the State to the admission of such testimony on the ground that it related to the reputation of the prosecutrix since the time of the alleged seduction. The court permitted an examination of the witness on his voir dire for the purpose of determining whether he was qualified to speak as to the general reputation of the witness, and having developed his testimony in full in the absence of the jury, sustained the objection. We make no comment upon whether the witness was sufficiently qualified to testify, but base our discussion upon the objection that the reputation of prosecutrix subsequent to the date of the seduction could not be inquired into. So far as we are aware this court has not spoken upon the exact question before us. We have made search for authorities from our own State and none have come to our attention. Appellant refers us to Davis v. State, 36 Texas Crim. Rep. 550, and Creighton v. State, 41 Texas Crim. Rep., 101, 51 S. W. Rep. 910, as supporting the admissibility of this testimony. The cases cited and many others may be found in our reports holding that proof of acts of intercourse or other acts of unchastity with other parties subsequent to the date of the alleged seduction may be shown, not as a complete defense, but to be considered by the jury in determining the chastity or otherwisе of prosecutrix at the time of the alleged seduction. In Knight v. State, 64 Texas Crim. Rep. 541, it was held that in order to establish the virtue of the female alleged to have been seduced resort could be had to proof of her general reputation for virtue and chastity, and that in like manner the accused could attack her virtue, but the question did not arise as to whether it should be restricted to such reputation at the time of or prior to the seduction. We disclaim any intention of expressing our approval of the doctrine that proof of reputation as to chastity, or otherwise, can be generally resorted to. We are considering only the question, that, if permissible аt all, should the inquiry be extended to a time subsequent to the date of seduction. In People v. Brewer, 27 Mich. page 134, this exact question was before the court, and Justice Cooley, uses the following language: “The first error assigned relates to the refusal of the court to allow the defendant to give evidence that the reputation of the complaining witness for morality and virtue in the neighborhood where she resided was bad. Questions were put to several witnesses for the avowed purpose of drawing out such evidence, but in every instance the time inquired about was the time of the trial. It does not, therefore, become necessary for us to consider whether the woman‘s reputation at the time or previous to the alleged offense could be proved or not, as it is manifest that her reputation in that regard would be injuriously affected by the offense itself when made known, so that if the bad reputation could be made use of by the defense, the very crime would become the means of protecting the criminal, and the more notorious the seduction the more certain would be the immunity from punishment.” We are unable to add to the reasoning of this learned jurist anything further which would indicate that testimony as to the general reputation of the prosecutrix for virtue and chastity subsequent to the time of the alleged seduction should not be allowed. The сondition of pregnancy existed at the time prosecutrix was living in the neighborhood of the witness Hunter and she gave birth to a child at that place. It was known that she was an unmarried woman. However virtuous she may have been at the time it is alleged she was seduced by appellant there can be no question that subsequent developments, if known, would have caused general comment unfavorable to her and it appears manifestly unjust to have permitted proof of general reputation based upon a condition brought about by what the State was contending to have been appellant‘s wrongful act. The same objection would not be
Complaint is made in the motion for new trial that the evidence is insufficient to support the conviction, in that the testimony of the prosecutrix was not sufficiently corroborated. We are unable to agree with this contention after having carefully examined the statement of facts. We can see no useful purpose to be accomplished in setting out the evidence in detail. It shows that prosecutrix became acquainted with appellant during the month of February, 1919; prior to that time she had received the company of other young men and hаd gone with them to dances and other entertainments. After having met appellant she received the company of no other, but he was a constant visitor at the home of prosecutrix and accompanied her to dances, parties, and other entertainments. The testimony of prosecutrix as to an existing engagement between them was supported by the testimony of her sister which is criticised by appellant to some extent, but was before the jury, and authorized them to accept the same as corroborative of the testimony of the prosecutrix in that respect. The father testified, without objection so far as the record discloses, that he knew his daughter was preparing to marry appellant. That a conviction for seduction may be sustained where the testimony of prosecutrix is corroborated by circumstantial evidence tending to show appellant guilty is not an open question in this State. Creighton v. State, 61 S. W. Rep. 493; Hinman v. State, 59 Texas Crim. Rep. 29, 127 S. W. Rep. 221; Thorp v. State, 59 Texas Crim. Rep. 517, 129 S. W. Rep. 607; Nash v. State, 61 Texas Crim. Rep. 259, 134 S. W. Rep. 709; Hayes v. State, 72 Texas Crim. Rep. 249, 162 S. W. Rep. 870. Other cases to the same effect may be found of more recent date than the ones cited.
Having found no errors in the record, the judgment of the trial court will be affirmed.
Affirmed.
LATTIMORE, JUDGE.—In an exceedingly clear and forceful motion for rehearing in which many authorities are reviewed, appellant insists that there is not sufficient corroboration of the prosecutrix as to the fact of thе alleged carnal intercourse between them. It seems not to be seriously contested that she is sufficiently corroborated as to the promise of marriage, it appearing in the record that her sister testified to having overheard appellant ask her to marry him and her assent to said proposition; also that her father testified that she was preparing to marry appellant.
We cannot assent to appellant‘s proposition of fact, which is that association between prosecutrix and appellant was the only thing shown by the testimony which could be considered as corroborative of her claim of carnal knowlеdge. Without attempting to enumerate such others, we think that a definitely proven engagement to marry,
“Nor can we agree that there is no corroboration of the prosecutrix in this case. By the terms of article 789 of Vernon‘s C. C. P., the only corroboration that is required is that there be evidence other than that of the prosecutrix which tends to connect the defendant with the offense charged. This opens a field as wide as one can imagine, lеaving it to a fair judgment as to whether or not there be evidence in a given case which, independent of that of the prosecutrix, tends to show that the accused is guilty. When an unfortunate situation develops, such as appears in the instant case, with regard to a young woman, it seems not unreasonable that the first and natural inquiry would be as to what man has been most frequently with her, and who would appear from ordinary observation to have enjoyed most of her favors, and, if this inquiry be met by proof that some one particular individual has been most frequently with her for quite a while and on more than usual terms of intimacy with her, this fact would appear to tend to show him to be the party responsible.”
In Fine v. State, 45 Texas Crim. Rep. 290, 77 S. W. Rep. 806, which is also cited by appellant, this court, in referring to the question of corroboration as to the matter of intercourse, used the following language.
“In this particular case, according to the prosecutrix‘s testimony, she had been engaged to appellant about six months at the time she claims to have been seduced; and we may concede that, as to the appellant having intercourse with prosecutrix, from the fact that he had continuous opportunities to have had such intercourse, and, moreover one witness testified that he saw them in the act of intercourse on one occasion, shе is abundantly corroborated as to the intercourse.”
In other felonies where the question of corroboration of an accomplice has been before this court, many cases might be cited where the association of the accused with the alleged accomplice, shown by other testimony than that of the accomplice, has been held sufficient
Overruled.