30 Tex. Ct. App. 695 | Tex. App. | 1892
This was a prosecution for incest, in which it was alleged in the indictment that the defendant had had carnal intercourse with Lena Schauer, his stepdaughter.
The first matter complained of is, that the court refused to appoint a stenographer to take down the evidence. Counsel for defendant stated that there was a competent stenographer in court, ready to serve, and that the defendant would pay his fees. Our Revised Statutes, articles 1295,1296, provide.for the employment of a stenographer in civil cases upon the application of either party, and the manner of payment of his fees for such services. There is no similar statute in our Code of Criminal Procedure which makes it the duty of the court to appoint such
The first section of defendánt’s bill of exceptions shows that appellant’s counsel asked the witness Lena Schauer the following question, to-wit: “Is your mother not now suing the defendant for a divorce, and claiming all the property?” To which question the district attorney objected, upon the ground that it was irrelevant and inadmissible, and the court sustained the objection. This is all the bill of exceptions discloses. It does not show the object and purpose for which the testimony was sought, nor how it was proposed to make same pertinent to any issue in the case, nor does the bill disclose what the witness would have answered in reply to such question as set forth in the bill of exceptions. This being the status of the bill, it is too indefinite for consideration on this appeal. May v. The State, 25 Texas Ct. App., 114, and authorities cited; Walker v. The State, 28 Texas Ct. App., 503, and authorities cited; Graham v. The State, 28 Texas Ct. App., 582.
The second bill of exceptions shows that defendant propounded an interrogatory to the prosecutrix, Lena Schauer, on cross-examination, as to whether or not, prior to the time alleged in the indictment, she had ever had carnal connection with any other man than the defendant. This bill of exceptions is subject to the same defects as shown in the first bill above discussed, and for the same reasons it can not be considered by the court on appeal. See same authorities.
Defendant’s third bill of exceptions was to the refusal of the court to permit the prosecutrix to answer the following questions, propounded to her on cross-examination, to-wit: “Did you not have carnal intercourse with Barnard Schauer, within 300 or 500 yards of your mother’s house, in the thicket; and did you not, when discovered by Ed. Shields, beg him not to tell, and offer to gratify him at the time in the same way?” To this question the district attorney objected, because it was irrelevant, and not admissible. The court then inquired of defendant’s counsel what was the object and purpose of the inquiry, to which said counsel responded as follows: “As a circumstance tending to show consent to the alleged offense, and as tending to show that she was particeps criminis in the alleged offense, and to show that she was probably actuated by the same motive as the defendant in the commission of the
Defendant’s counsel have cited the case of Tipton v. The State, ante, p. 530, as a case directly in point. The instruction in the latter case is not similar to the one above quoted, and that instruction was held to be upon the weight of evidence, because it in effect instructed the jury that if the prosecutrix was not an accomplice a conviction might stand upon her evidence without corroboration, which was a charge directly upon the weight of evidence.
Defendant’s fifth assignment of error complains of the refusal of the court to give in charge to the jury defendant’s special instruction number 1, as follows: “If the evidence shows the mother of Lena Schauer to have been married ’three times, and that the defendant is the last husband, then the State must show by evidence to the satisfac
Finally, it is insisted on behalf of the appellant, that the testimony establishes beyond controversy the fact that the prosecutrix was an accomplice and particeps criminis in the crime, and that her testimony has not been corroborated by any other testimony in the case. In this we can not concur with counsel for appellant. If it be conceded that the prosecutrix was an accomplice, then she is, we think, sufficiently corroborated by the fact that as soon as the child was born the defendant separated from his wife and family on account of that fact and went off to a distant relative’s to live, and the farther fact that when his wife’s relatives sought him for the purpose of demanding an explanation of his conduct, he admitted his guilt.
Having found no reversible error in the judgment, it is affirmed.
Affirmed.
Judges all present and concurring.