36 S.W. 477 | Tex. Crim. App. | 1896
Appellant was convicted of seduction, and given a term of two years in the penitentiary, and prosecutes this appeal. Appellant made a motion for continuance on account of the absence of Dave Jones, alleged to reside in Hill County, Texas, and Mrs. Lilly Grubs. As to the latter witness, it is sufficient to say that she was present at the trial, and was not placed on the stand by the appellant, but was used as a witness for the State. Appellant shows, as to the diligence used as to the witness, Jones, "that on March 9th, 1895, he applied to the Clerk of the District Court of Jack County, for an attachment to Tarrant County, Texas, for said witness, Dave Jones, as he was informed and believed said witness then resided in Tarrant County; that the same was thereafter returned by the sheriff of Tarrant County, stating that said witness was not found; that the defendant then began to make inquiries concerning the residence of said witness, and ascertained that on or about the 20th of August, 1895, said witness resided in Hill County, at Hillsboro, and defendant on said day applied for and had issued an attachment to Hill County for said witness; that thereafter, on the 9th of September, the sheriff of Hill County returned the said attachment, stating that Dave Jones was not found in said county. Defendant had another attachment issued on the 9th of September, to Hill County, for said witness, and said attachment has not been returned." Appellant does not show by any averment that said last mentioned attachment was ever sent to Hill County, to the proper officer. It occurs to us that, if appellant had used reasonable diligence between the March and September terms of said court, he could have located said witness, and had him under process. Appellant states he expects to prove by said witness that within a year of the time, and before, it is alleged in the indictment that the defendant seduced the prosecutrix, he (said witness) *211 had had sexual intercourse with the prosecutrix, in Jack County, Texas. He does does not state the time or place when he had this act of sexual intercourse, but states, in a general way, that it was somewhere in the County of Jack, and some time within a year before the alleged prosecution. This allegation, to say the least of it, is very general. And, moreover, it is shown by a number of witnesses that said Dave Jones, who had, several years before, lived in Jack County, had not been seen in the neighborhood where the prosecutrix lived for some two years before the time of the alleged offense. We take it that, if said witness would swear to an act of sexual intercourse, as stated in said application, it is not probably true; and so the court did not err in overruling the application, and in refusing a new trial predicated upon this ground. On the examination of the prosecutrix, the State asked the witness, "Would you have yielded to the sexual embrace of the defendant, had it not been on account of his promise to marry you?" The bill of exceptions shows that the defendant saved an exception to this question, but the answer of the witness is not shown. This ought to have been shown. Besides, we see no objection to the question, regardless of the answer. Nor was it objectionable, in our opinion, to prove by the prosecutrix that the defendant was the father of her child, then in her arms. Nor was it objectionable to prove by the mother of the prosecutrix that she overheard a conversation between the appellant and the prosecutrix in April or May, 1894. This, we think, was legitimate testimony, tending to corroborate the prosecutrix as to the defendant's engagement to marry her. And in our opinion it was admissible to prove that the defendant was received at the house of the mother of the prosecutrix on terms of familiarity. On the trial of the case the State's counsel asked the witness, Steve Tighlman, if he did not say to Will Tighlman, in Leach's livery stable in Jackboro, Texas, in the month of March last, that E.W. Nicholson, counsel for the State, told him (Steve Tighlman) to go and tell Will Tighlman that he would put, or have him put, in the penitentiary, if he swore against the prosecution in this case, and also asked the witness if he, at the same time and place, in the presence of Roberts, said to Will Tighlman that, if any one swore against the character of the prosecutrix, he would not live to get out of town. Appellant's bill of exceptions shows that this testimony was objected to by defendant, and State's counsel stated that the purpose of the testimony was to impeach the testimony of defendant's witness, Will Tighlman. Appellant reserved his bill of exceptions to said question, because it was upon an immaterial issue. It will be noticed that the answer of the witness, or whether the answer of the witness was given, is not stated; nor is it shown that any evidence was adduced, upon this predicate, of an impeaching character. Under these circumstances, we cannot consider this bill of exceptions. We have examined the bill of exceptions to the refusal of the court to give the charges asked by the appellant, and the exceptions to the charge of the court. We think the charge of the court upon the matters *212 embraced in said exceptions is sufficiently full and clear, and there was no error in refusing to give the requested instructions. Appellant, on his motion for a new trial, produced the affidavit of one T.A. Hight, and said affidavit is to the following effect: That he was one of the jurors who tried this case against appellant; that, before the jury arrived at a verdict, they were taken to supper, and on the way back this juror, Hight, states that he heard somehow, but does not know how, that the defendant's witness, Walter Tighlman, had been arrested for perjury committed on the trial of the case, and his bond had been fixed at $600. This juror further states that the matter was mentioned before the jury, but he does not state what was said, not does he pretend to state that it had the least effect upon any other member of the jury. He does say, however, that before he had heard of this incident he had agreed on a conviction of the defendant, and the assessment against him of a small pecuniary fine; and he does not believe he would have consented to the punishment assessed if he had not heard of the arrest of said Walter Tighlman, and then began to look at the probable hearing that the said arrest for perjury might have on the case in the event of any possible truth in said charge, and he then consented to the verdict which was rendered. We would gather from the silence of this affidavit that none of the other jurors were affected in the slightest degree, and the only effect it is pretended said arrest could have possibly had was to contaminate and corrupt the mind of the juror who made this affidavit. No evidence is presented by this affidavit, or otherwise, that there was even any truth in the report that said Walter Tighlman had been actually arrested on a charge of perjury committed in said case. For aught that we know, this was mere idle rumor and hearsay; and it can hardly be contended that this court is to reverse a case on the ground of mere rumor and hearsay of this character, which it appears so easily permeated the recalcitrant juror, and corrupted him to the extent of constraining him to agree with the other eleven jurors trying the case. But, if it be true that the witness, Walter Tighlman, had been arrested on said charge, we fail to see how this could be considered in the nature of new evidence in the case. The ground upon which the charge, if any, was preferred against said witness, was on account of matters transpiring right before the jury, on the trial of the case. They were in possession of all the facts, and the jurors could know whether there was any reasonable ground for the charge against said witness. In the administration of law, it may be that the witness committed perjury in the case then being tried; and in such case it would be the duty of the officers, on proper affidavit, to prefer the charge, and cause the arrest to be made. Of course, where the case is on trial, it should always be managed so that the arrest may be kept from the jury; but if the fact of the arrest should accidentally get out, and the jury get information of it, we can see no reason why this fact alone should cause a reversal of the case, especially in the absence of a further showing of prejudice against the defendant than is here presented. See Parker v. State (Tex.Crim. App.), *213 30 S.W. Rep., 553; Williams v. State, 33 Tex.Crim. Rep.. Another question presented in this case is as to the authority of the District Court of Jack County to hold a term of court when the defendant was tried for this offense. This same question was presented in the case of Phipps v. State (disposed of at the present term of this court), post p. 216; and on the authority of that case we hold that the District Court of Jack County held a legal term under the law of 1892 on the first Monday in March, 1896, and that the trial and conviction of the defendant was at a legal term of said District Court. There being no errors in the record, the judgment is affirmed.
Affirmed.
