*1 MB v. The State. Tinker The State. Ennis January 31, 1923. No. 7269. Decided Rehearing June 1923. Granted —Rape—Indictment—Age Remale. 1. ground quash defendant to Where moved years, age charged knowledge fifteen a female under carnal correctly years, eighteen is, age was same now of consent as it Rep., Young Following 414. 230 S. W. overruled. Jury Authorized to Be Present. not
2.—Same—Indictment—Grand —Persons persons acting regard in various This court held jury, capacities presence extending grand during investigation that such of crimes being had before than while was no further grand jury, while not within the forbiddance of such come deliberating finding indictment, grand jury the there is no Rep., 604, McElroy Fallowing error. reversible cases. and other Offenses. —Same—Severance—Different 3. for a severance and that co-defendant Where defendant moved placed upon trial, appeared
first the record that the latter was and it alleged injured herein, rape upon female which the sister of indicted for offense, correctly presented overruled. the motion was a different —Same—Preliminary Motion —Written Statements. 4. showing alleged written statements were In the absence of compel correctly jury, motion State’s overruled a
before the the court by anj' attorney made all written statements defendant with to furnish possession, in his as well as list of which were witness witneses. State’ Trial Court. Witness —Practice in —Same—Child 5. years prosecuting thirteen was shown to be about witness Where obligation seemingly understood the an time of the trial old at the oath, shown, no of discretion there is reversible no abuse and there was
error. Attorney. of District —Same—Conduct 6. attorney appellant’s .that the remark of the district claimed Where sneering questioning qualified desisting in a the witness was from further so, way, there suggestive it was bill the court but no error. Transactions. —Same—Evidence—Other introducing rape Upon there was no error trial of whisky alleged they girls obtained defendants left with after they although them, it involved an- just put carried with into the car and
other offense. Turpitude. —Same—Moral competent for State ask behalf, *2 testifying stand, under if he was not in his own felony. Testimony. —Same—liehearing—Witness under Buie—Additional appeared rape, appeal Where, upon of from a conviction placed under were the witnesses was invoked and the rule record that rule, alleged proscuting whom witnesses and that thereafter other, con- permitted, each rape in the were was committed touching details officers and sult and they given, already they thereafter that and had damaging facts additional again stand and the witness called to judgment violated, held, defendant, against the rule was that cause remanded. and the reversed must before Tried below Cass. District Court of from tlie Appeal Carney. Hugh
Honorable years im- twenty rape; penalty, conviction Appeal from a penitentiary. in the prisonment opinion states the ease.
The ques- appellant. for I. N. Williams Newland and C. R. —On 367; Wolf Rep., severance, Anderson tion id., Cited, General, Attorney for the Storey, R. Assistant G. State. — opinion. cases District was convicted Judge. Appellant LATTIMORE, — punishment fixed County rape, his of the offense of Court of Cass period twenty years. penitentiary for a at confinement dispute and one record herein shows without The girls Pleasant in with from Mount Cass Coun- Adams went two little They Texas, Texarkana, Texas. left Mount Pleasant a car to ty, night they in the Atlanta in afternoon. Some time reached late one County spent night. Appellant to a hotel and Cass went registered party “Adams, daughters.” They son and called beds, room with two into which the entire went and re- morning. Appellant till slept mained contends that and Adams he girls occupied in one bed and that two charged other. isHe rape upon younger girls who, according to the State’s theory, was years age. at that time but twelve She testified that liquor she and her sister were under the influence of them Adams, appellant and that she went to bed with appellant, hav- ing on both her outer and underclothes. She said she was wakened hugging up during night her and that thereafter he had acts of morning. two intercourse with her before She said that when her, he woke she discovered that he removed her drawers. She further got up testified when she she bathed her Tite Tinker v. State. limbs. her other matter and there was blood
private parts bathing girl injured alleged she saw other sister testified limbs. her saw‘blood morning and next private parts next room she found testified that landlady the hotel girl. young drawers gone, the party had of. morning after the girls at Texarkana Physicians who examined the enlarged girl much injured alleged private parts of the found the capable was both she the fact pointed and that indications she had been and that with a man intercourse indulging in sexual parts did private though said past, at some time penetrated penetration. recent violent not indicate ground that upon the quash the indictment moved to Appellant age of fifteen knowledge under the charged carnal female it years, years. This eighteen is is age as it now of consent and that the Young contention. against appellant’s question has decided *3 Rep. 230 414. Rep. 230, S. W. State, v. 89 Texas Crim. upon ground quash the indictment
Appellant also moved to grand jury law, present with the persons by not authorized were finding instant indictment. deliberating upon the of the when it was youth timidity and because of the It was shown and admitted that injured accompanied grand alleged was into the of the female she county lived, was jury by the in which she room sheriff being was without present questioned. she was It also shown while they present grand jury that no one when contradiction was deliberating upon finding question the indictment regard presence persons This herein. court has held act crime, ing capacities during investigation in various such presence extending being no further than while grand before jury, within come the forbiddance such grand jury finding deliberating upon the said McElroy 604; State, indictment. v. 49 Rep. Texas Crim. Moody State, Rep. 76; 57 Texas Crim. Porter 70 Texas Rep. 71, 160 Rep. W. S. See other cases cited Branch’s Ann. C., any P. Sec. 486. Inasmuch as person other jurors grand body than the deliberating upon the time said herein, negatived by return is shown, the facts is contention without merit.
Appellant moved for a severance and placed that Adams be first rape upon Adams was trial. indicted for the sister of the al- leged injured herein. bring female Ye do not deem this to comprehension within the of our regard statutes in to severence. provided by 726 P., Art. C. C. that when two or more defendants jointly sever; prosecuted, may are by is also provided Article id., where two or prosecuted more defendants are an growing offense transaction, out of the may same either file his affi- davit that the evidence other parties is material for T. c —10 may desired defence, etc., person thus and the whose evidence “ transac- by first be of the term tried. It seems to be held that the use to, parties must tion” in that the the statute above referred meant Ray Rep. be indicted for the same offense. v. State, subject recently by been discussed this court Cotton 6503, opinion 15, 1922, No. holds delivered November which appellant’s beyond adversely question contention. It would seem appellant being charged rape upon Maggie Ray and Adams with rape upon charged parties with Ray, Neoma that said were not the same-offense. urged granted
It is that the court should motion made have compel the State’s to furnish the defendant by any all written might statements made witness in the possession attorney, then inbe of said as well all list of the wit- expected nesses to be used the State. The written statements were jury, not before the we are of the refusal such mo- presents tion no error. urged Ray
It is also that the witness Neoma was shown preliminary incompetent. examination to be Said witness stated as preliminary follows questioning: I doing just understand what I am I now, swearing against am Adams, man know, old is all I going that means that I am to tell truth. I know the story difference between a truth, and the I can story tell help him out tell the truth and it won’t. I know right which is wrong, right which is it is to tell the truth.” This witness was shown years to be about thirteen old at the time trial, and we deem it no abuse of the discretion confided trial court to competent hold her as a witness. *4 by It is shown exceptions a bill of Ray that while Neoma testifying, attorney appellant for interposed an in re- objection, sponse to which and before the ruled, attorney court the State’s re- right, marked: “All if thinks damaging he it is I will not insist.” Appellant’s objection to this seems to be based proposition sneering that said remark was in a suggestive way, qualifi- but the cation of the trial court consists of a statement that the manner of attorney the State’s was not as stated in said bill. per- We do not any ceive in error the matter set out in said bill qualified. as so Upon trial of the case the rule was invoked. Said trial ex- days. Ray tended over some The witness Neoma was called back to having chief, the witness stand after in testified and when so recalled gave testimony fact that at Atlanta on the after the night spent in the room with men, Maggie, said two she saw her sister alleged injured in the instant wash blood from her legs private parts. Cross-examining appellant’s this witness developed during counsel attorney, fact that the trial the district accompanied jail sheriff, came where witness 14.7 State. v. Tns 4.92.31 about to them talked trial, and during staying Maggie were sister girls at both being had with testimony, conversation said their of ex- bill to court .this trial qualification same time. The dis- allow to his custom the statement contained ecutions the rule under witnesses attorney to talk to trict ofwas being done, the sheriff, this justify as was shown the rule violation of serious that no such are matters These witness. testimony of said rejecting the him in upon com- but unless courts, of trial the discretion largely confided to no that there to us appear evident to plaining thereof it made discretion, of such arising an abuse injury him to likelihood upon such reversal based to direct not feel inclined court would this within this himself brings appellant We believe do not contention. appellant’s further just applies to the said also rule. What we have Ray was intro- Maggie testimony witness objection from the by appellant objection made an duced the State and over the case had discussed based on fact that she Ray. jail of Neoma after fact that objection is a further There two men involved leaving children, the Mount Pleasant with said two put car and whisky which in the transaction obtained development aof trans- carried them. The fact that brings upon by constituting crime, out relied action the State as independent crime, does facts which of themselves constitute an other independent crime per se make the evidence of such inadmissible. out proposition relied that these two men started The State together children, part and that as a of and fur- debauch these purpose, they procured therance to said in- children toxicating liquor. transporting The fact of such liquor crime, an independent would constitute would not seem to make it development against appellant inadmissible the ease rape. competent
We deem it for the State to ask while on the testifying stand behalf, his own if he was not under indict- felony. always ment for a Such been held ad- us affecting credibility missible defendant as witness. Finding record, judgment no error in the of the trial court will be affirmed.
Affirmed. Judge. MORROW, Presiding urged —We are to reconsider *5 ruling to the effect that there was no harmful error in receiving the prosecutrix, Maggie Ray, and her Ray, sister Neoma they after had conferred with each attorney other and with the district and others in each other.
We understand from two exception bills of subject on the State by the Ray introduced case, Neoma opening that recess until took testimony, her and at close following morning. sister, and her that she in substance recess she Before the an auto- appellant traveled and the with Adams Maggie, together Lin- night at over Texarkana, stopping Pleasant from mobile Mt. they all Adams; that whisky Atlanta; she was or that den quotation is taken hotel. This occupied same room testimony: her Atlanta we come or you was Linden it “I can’t tell whether one, town some Linden Atlanta stayed night all through; we stayed all night. whether we stayed I don’t remember we all where rooming house road. I was night in a on the hotel or car up the morn- morning. When I woke next up the next when T woke Maggie room Ennis Tinker was ing, Adams and and got next up I it was when I time me. don’t remember what Maggie me. reckon, what told 7:30 I that morning, along about Ennis car, and Adams and Maggie in a Then to Texarkana we went morning. I was in bed Maggie upme me. woke that and Maggie Adams. reckon, I in bed with up she when woke me got up I be- night a little house that reckon. She slept there in that got in bed with Adams I her out. I was did. I saw when she fore ’’ got up us went to Texarkana. and then four of and morning, following she this opening of court on the On the testimony: further Maggie sister, Ray, and
“That in Atlanta before she her and way Texarkana, Tinker and Adams started on their defendant very sister, Maggie wash morning Ray, saw her she off of her private parts blood; Maggie’s legs and saw blood on some she spending night washed legs; Maggie after ’’ Atlanta. Upon giving testimony, this additional counsel for appellant developed testimony: this “On witness, cross-examination of this when asked if that was ‘ replied: first told she ever I that, time told it to the night.’ attorney last replied: Defendant’s counsel ‘You told night?’ last ‘My the witness answered: did.’ sister Defend- ant’s counsel then asked: ‘You heard her it?’ and tell the witness ‘Yes,
answered sir.’ And questioning, on further the witness stated county that the district attorney and the sheriff present questioned were Maggie her and her sister, Ray, down at jail night questioned last them and talked to them together; and also that Sheriff Reeves of County Titus present but retracted the statement as to being present Reeves stated he was on the front porch.”
A motion to exclude supplemental was made on *6 151 Tinker v. State. next room the the cleaned Atlanta in hotel landlady the at the two Adams and and hy appellant occupied after it a pair found beds but the any kind on girls. no stains She found pants in the room. of children’s conflicting every at evidence the observed It is to be direct evidence, both girls, there point. Touching age of the over and they were circumstantial, to the effect with reference is true same age years. The of fifteen were under the journey from chastity happenings and of previous to their notably true, to the due This latter Mt. Texarkana. Pleasant to in the several oath girls under by both of denials numerous made present trial and of made antecedent investigations physician. prosecutrix examination frequently have taken Supreme Court Both this manner scrutiny the evidence and necessity for careful note of the State, 42 Davis v. In the case of in of this character. cases 229, said: it is went,, it court, to extent to which “The instruction of view, however, In strictly and correct. accurate unquestionably feeling, which passion prejudice, if not the nature of the in preferred calculated to charge as that such question essential its arouse, and the character evidently, and, turned, meagre, indefinite, proper determination unsatisfactory, evidence, extent, contradictory if not least, some jury drawn, was to be we cannot from which the conclusion charge perspicuous was neither full nor of the court so but think the directing jury real of the issue in the as attention ’’ might been. and should have Judge speaking Willson, And 'from the this court Gazley State, App. quote: 17 Texas v. we may “And a conviction of this offense there even injured female, although uncorroborated she abe age years. (2 Law, 968; under of ten Bish. Cr. 1 child Rus~. on Crimes, 931.) ed., agree, 9th But all authorities and especially injured young child, where female is a a ease that this is a crime requiring special scrutiny by jury, weighing and a careful evidence, probabilities, with all remote and near circumstances injured in eases where the female is unconfirmed And it has well other witnesses. ‘it should be the care officer, every prosecuting sort, case of this carefully seek ” tending for circumstantial to confirm evidence the main witness.’ expression This view of the court has been holding cases insufficient, Gazley’s case, supra. the evidence was done See State, App. 281; v. 19 State, also Montresser Texas Crim. Kee v. 65 Rep. 517; State, Rep. 925; Donoghue Adkins v. 65 W. S. W. S. v. Rep. 309; State, 79 S. 48 State, Rep. 519; W. Dusek v. Texas Crim. 95 152 Texas Criminal Logan State, 66 State, Rep. 468; 94 W. v. Texas Crim.
Alcorn v. S. Rep. 506, Rep. 713; State, v. 148 S. W. Edmondson Draper 655; 917; 57 Rep. 113, Rep. State, Rep. S. W. S. W. Rep. 622; State, 730; Rep. State, Elam v. 20 S. W. Blair v. 56 S. W. Rep. 75; Duckworth Texas Crim. Galaviz *7 377, 947; Rep., Rep. State, 198 S. W. Smith v. 86 Texas Crim. Texas 455, Rep. emphasized 217 Rep., Crim. S. W. 156. This has also been inflammatory arguments of passing manner con- the ducting State, Rep. 354; 84 trial, the as Venable v. Texas Crim. enforcing of also to -the abuse discretion to the rule referen«e touching separation State, 90 the of witnesses. Crosslin v. Rep. Crim. 467. concerning separation by placing
Our statute the of witnesses (Art. P.) subject 719, them under the rule has been C. C. of reports, generally holding much discussion speaking, the of enforcing is that the discretion court with reference to one, except rule a appeal, broad not to be revised on in cases abuse, substantially of but that it abridged by any should not be arbitrary action. See cases listed in Stat., Vernon’s Tex. Crim. Vol. p. 399; 2, Bishop State, also v. 81 Rep. Texas Crim.
In
the case Welhausen v. The
30
App., 626,
Texas Crim.
this court entered a reversal because the trial court admitted in evi-
testimony
of witness
dence
a
who had violated the
rule
deputy
decision,
connivance of the
sheriff. From
quoted:
this is
provisions
“That
these
flagrantly
the law were most
violated
questioned,
can not
only by
be
and violated
witness,
not
but
deputy
sheriff.
judge
chief
While it is true that the trial
is in-
vested with wide discretion in all
relating
matters
pro-
to this
cedure, and that such discretion will not be revised
appeal
unless
abused,
right
it has been
to have the witnesses under the rule
substantially abridged
should not be denied or
at
arbitrary
dis-
’’
judge.
cretion of the
example
An
is also
found
ease Heath v.
7
State, Texas
App.
quote:
from which we
large
“While the law
invests
judges
discretion in trial
as to the
examination of witnesses and the enforcement of the rule when the
requested by
same has been
party, yet
either
this discretion is not
arbitrary,
giving
right
nor
the statute
merely
directory and to
disregarded
be
at pleasure.
right
to enforce
right
the rule is a
by law,
and it should neither
denied nor substantially
be
abridged at
arbitrary
discretion
presiding
judge. Being a
right guaranteed by law, a
should
request
not
defendant
after
deprived
its
benefit,
clearly
its
ap-
unless
should
enforcement
pear
possible injury
that no
could result to him
its relaxation.”
The abuse of
in excluding
discretion
receiving
or
difficulty,
who
the rule is a
of a witness
has violated
matter
sub-
153
The State.
v.
obviously determinable
contrariety
opinion,
ject to some
violating the
punished for
may be
A witness
case.
facts
each
ought
to
of the witness
the conduct
speaking,
generally
rule, but
testimony.
doTo
his
benefit
calling him the
deprive
party
witness
fault, and not the
is not at
punish
party, who
so, is
2, page
Vol.
Proc.,
Bishop’s New Crim.
disobeyed
See
the court.
rule
nor does the
apply,
does not
for this rule
reason
brought
par-
at or
about, connived
who has
of one
operate
favor
witness.
ticipated
disobedience
v. Gesell
of Missouri
State
Supreme Court
is said
“
who desires
536)
if
Rep.
(124 Mo.
or has
in his disobedience
participated
witness,
disobedient
say,
witness, that
the fault of the
guilty of connivance
oversight
consent,’
voluntary
'passive
guilty of
has been
violating
rule,
agree
all authorities
presence was
testify.”
Jackson
See also
v.
not be allowed
he should
Kelly
Hubbard,
42;
Atkins,
327;
Ore.
Colo.
Ind.
Hubbard
Allerton,
208; Murray
This the court refused to exclude Maggie pellant permitted calling Ray, who corroborated n sister, which, believed, strongly supported if testimony, testimony the doctor the State’s case tended to minimize the 'washing parts he said that the of the have detracted opinion presence from the value of his and that the of blood would transgression this rule, have done likewise. Previous to there testimony blood; testimony no washing, notwithstanding was no developed through its the State of the witness Ray. qualifying The court in Neoma the bill said that it was his cus- to allow tom to talk to witnesses under the rule sheriff, and that in the instant case the court opinion departure was of the that the ap- not harmful pellant. suggestion qualification There is no that the rule was violated, nor that the participated officer the court had not talking to the two witnesses other; of each nor do we any injury find basis that no resulted. Doubtless the prompted' by good prosecuting officer motives, but his zeal, in beyond him judgment, led proprieties. our after the conference in came violation of the rule was in judg- our important. ment, previously It had not light come to so far as the contrary, record reveals. On the opposite is indicated. That it injure was calculated to is manifest. The importance brought pertinently of the matter was not to the attention of this original opinion court at the time the written, and it was then *9 merely the act was assumed one within the discretion of the However, upon court. a re-examination of the record and a more matter, mature consideration of the we are that the procedure was not conducive to a fair trial, and that in view of the assessing practically against verdict a life sentence the appellant, a new should have been accorded him. For-this reason, the heretofore entered should affirmance be set aside, the motion for re- hearing judgment granted, of the trial court reversed and the remanded. It is so cause ordered.
Reversed and remanded.