144 S.W. 246 | Tex. Crim. App. | 1912
Appellant was convicted of rape, and his punishment assessed at five years confinement in the State penitentiary.
1. Appellant complains that the court erred in overruling his application for a continuance. By one of the witnesses, Elnora Warren, he states he expects to prove that "she saw the prosecuting witness Mary McVey shortly after the alleged rape and there were no bruises or other indications of an assault upon her person." By the witness Bob *127
Krouse it is stated he expected to prove that "the prosecuting witness is a married woman over 16 years of age, and that the witness Krouse had often had sexual intercourse with the prosecuting witness, and that he had lived with her as his wife." There is no process of any character attached to the application, nor the return of the officer, if any had been made, is not shown; nor is there any excuse given why this is not done. In the application it is stated: "One of said processes has been returned, having been properly served, but the other has not," without showing which witness had been served and which had not been. The court, in approving the bill, states: "No issue was made by the defense as to injury on knee of prosecutrix and no evidence offered in the trial that witness Elnora Warren ever saw or knew prosecutrix. On the showing made by the State and in the light of the defense the testimony of said witness was probably not true. The testimony of the witness Bob Krouse was immaterial and probably not true." The rule adopted by this court is that, after trial and conviction, the court is called on by motion for new trial to reconsider the refusal of a continuance, the truth, materiality and sufficiency of its allegations are to be considered in connection with the evidence adduced at the trial. (Mitchell v. State, 36 Tex.Crim. Rep.; Henry v. State,
2. In another bill appellant complains that the witness Clara Castle was permitted to testify "May McVey told me that Sam Wade jerked her out of the buggy; knocked her knee up against the buggy; threw her down on the ground and did what he wanted to her; that she was crying, and that Sam Wade did this after taking her out into the field. May made this statement to me on the night of the alleged rape." Appellant's objections were that the statement was hearsay; that it was offered as original testimony, and no attempt had been made to impeach the prosecuting witness; that said question called for particulars in the case about the alleged rape, and was made in the absence of the defendant. The court, in approving the bill, states: "The statements of prosecutrix to witness Castle were so closely connected with the act of rape and separation of parties, both as to time and place, as to be a part of the res gestae of the transaction, and was so admitted," the witness Castle further stating that the "prosecutrix was crying while she was telling me and she showed me her bruised knee at the same time." When a person accepts a bill as qualified by the court he is bound by the qualification. (Blain v. State, 34 Tex.Crim. Rep.; Hardy v. State,
These are the only bills of exception in the record, except the bill reserved to the action of the court overruling the motion for a new trial. In this there are many assignments based on the insufficiency of the evidence, and appellant has filed an able brief in which he earnestly insists that the evidence does not support the verdict. If we should view the case from the standpoint of defendant alone, and accept the testimony offered in his behalf as true, and wholly ignore the evidence offered in behalf of the State, there would be force in his contention. But the evidence for the State, as we view it, makes out a strong case. The prosecuting witness, May McVey, testified that "she was a stranger in Reedville, the place where the offense was alleged to have been committed; that she went with appellant to the party at the suggestion of her cousin." "I do not know what time we left the party; this was the first time I ever went with him; after we left the party he began to talk to me about what he wanted me to do and I told him I wasn't going to do it, and when we went to the wire gap *129 he led the horse through, I went to get out of the buggy. I started to get out of the buggy to run. I was scared of him, he told me if I got out of the buggy he would kill me. I started to get out and he dared me to get out, the did. He was there at the wire gap and went up in the field a little piece and went to make down the pallet and then I started out and he told me if I got out he would kill me. We did not have to go through that field in the buggy; he taken me a different way; we went into the field in the buggy and stopped the horse and he got out and taken a white blanket and spread it down. I wanted to get out and started to hollering and crying and told him I did not want to do what he wanted me to do. Then he kept beating me, and told me if I didn't hush, he says, `I will beat you,' and he told me he would marry me if he got me that way, and I told him that I didn't want to do anything like that, and he jerked me out of the buggy and I think my knee must have fell against the buggy wheel or something. I thought that my knee fell against the buggy wheel and he drug me to the pallet then. I think it must have, there was a bruise, I couldn't walk, it was sore a good while, when I came to Lockhart I was limping and it was sore for sometime afterwards, when he jerked me out of the buggy he drug me to the pallet. He threw me on the pallet. I was crying and swinging against him; he kept tussling me and went to pulling up my clothes and I went to hollering and he got on me and caught both arms and mashed me down on the pallet. At that time he used violence on me and beat me when he had me down on the ground. I did not submit to him. I told him to the last that I wasn't going to do it. He went to mashing me down. He went to raising my dress and got on me, he did, and told me that if I got in the family way that he would marry me, and I told him I did not want him, and he told me to lock my arms around his waist and if I would he wouldn't beat me and he went on and did it to me against my will and against my consent; he told me if I told it he would kill me. He overpowered me and I couldn't help it. I didn't put my arms around him. When he got through with me he set up and went to the buggy and told me to come on and I didn't want to go and kept crying. I did not know the way back or I would have left him."
The State introduced, without objection, the confession of defendant, which is as follows: "My name is Elijah Kimball, but they all call me Sam Wade. Last Thursday night I went to a party at the school house at Reedville from the Bill Schawe place. I went with Mary McVey in a buggy. On the way home I had intercourse with Mary. I hit her with my hand three or four times to scare her and make her keep quiet. This was while we were in the buggy and on the ground both. I lifted her out of the buggy, catching hold of her around the neck and around the legs. I then spread the lap robe out on the ground and laid her down on it myself. I pulled up her clothes and *130 got on top of her. I was lying on her when I hit her a time or two to scare her. I told her to open her legs and she did so. She cried through the first part of it. This happened out in the field about twice as far as this courthouse to the north side bank from the road. I took her out in the field off of the road to do it to her. As we went through the gate into the field Mary said something about getting out of the buggy and I told her not to get out. She put her arms around my neck while we were doing it, but I told her to and hit her with my hand. I asked her to submit to me on the way to the party but she told me she was scared and wouldn't do it."
This testimony amply supports the verdict, and while appellant's counsel ably argue that there is evidence which would support a finding that the intercourse was had with the prosecuting witness' consent, yet this was a question for the jury to determine. The court instructed the jury:
"You are further charged, if you believe from the evidence that the said Mary McVey by act or conduct towards the defendant which were reasonably calculated to induce the defendant to believe that he had the consent of the said Mary McVey to have carnal intercourse with her, caused the defendant to believe that he had the consent of Mary McVey to have such intercourse with her and so believe the defendant had such carnal intercourse, if any, with the said Mary McVey, you will acquit him."
Under this instruction the jury find against appellant's contention. The criticism that this paragraph should have included the word "words" as well as acts and conduct is hypercritical. When the court instructed that if she, by her acts or conduct, caused defendant to believe that he had her consent, they would acquit, the jury could not have been misled, because he did use "words" also. The court charged the jury: "You are instructed that if you believe from the evidence, beyond a reasonable doubt, that the defendant on or about the 25th day of November, 1910, made an assault upon Mary McVey, a woman, and did then and there by force violently ravish and have carnal knowledge of her, the said Mary McVey, without her consent and against her will, you will find the defendant guilty as charged," etc. Appellant copies this paragraph and alleges that "the court should have charged the converse of this proposition, that if they had a reasonable doubt as to whether defendant made an assault, etc., they would acquit." The court applied the doctrine of reasonable doubt to the case as a whole, and there was no error in not thus charging the jury. The court gave the statutory definition of rape, and appellant complains that this was submitting issues not arising under the evidence. There might be some force in this contention if the court had not followed this paragraph with instructions that "in this case the indictment charges rape by force and threats, and I charge you," etc., thus limiting the consideration of the jury to rape as charged in the indictment.
We have carefully reviewed all the criticisms of the charge contained *131 in the motion for a new trial, and none of them present reversible error.
The judgment is affirmed.
Affirmed.
[Rehearing denied February 28, 1912. — Reporter.]
