Calhoun v. State

• Citation: 214 S.W. 335
• Decision Date: 30 April 1919
• Docket Number: (No. 5163.)
• Parties: CALHOUN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 335

214 S.W. 335

CALHOUN v. STATE.

(No. 5163.)

Court of Criminal Appeals of Texas.

April 30, 1919.

On Motion for Rehearing, June 25, 1919.

Appeal from District Court, Walker County; E. A. Berry, Judge.

Bubber Calhoun was convicted of rape, and he appeals. Reversed and remanded, and the State's motion for rehearing overruled.

Hill & Hill, of Livingston, and Dean, Humphrey & Powell, of Huntsville, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was given the death sentence for rape of Mrs. Mattie Hallmark.

The occurrence is stated to have taken place at about 7:30 a. m., down in the big woods in the lower part of Walker county, Tex. The prosecutrix lived with her husband and three children in a logging camp; most of the people in said camp were negroes. Several white witnesses who lived at said camp testified that prosecutrix associated mainly with the negroes, and that the white people had very little to do with her; also that her reputation for chastity was bad; that she was seen in company with negro men, who would stop at her house, and from whom she would bum cigarettes and smoke, and laugh and carry on. Her story of the rape was that on the morning it occurred appellant came to her box car house and asked where the old boss was, meaning her husband, and she told him he was at the corral. The corral was about 100 yards from her house. A Mrs. Millwee, a white woman, lived with her family about 20 steps from the prosecutrix. Further on beyond Mrs. Millwee's, about 100 yards from prosecutrix, there lived a negro family. About 150 yards in the other direction from prosecutrix there lived another negro family. She says that all these people were at home when the rape occurred. She testified that shortly after appellant came to her house and asked her about her husband she went into the bushes near the corral to attend a call of nature. On her way back to her house, and when at a point about 50 or 75 yards therefrom, and in plain sight of her house, she says appellant appeared, and that she saw he was going to catch her, and she said: "Oh Lord! Richardson, run here quick." What tone of voice she said this in is not disclosed by the record. She further says that appellant told her to hush or he would cut her damn throat; that he had a knife and a stick; that he caught her this way (way not indicated), and put his other arm about her shoulders, and carried her out into the woods and had sexual intercourse with her. She does not tell anything about resisting or refusing to have sexual intercourse with him after they got into the woods, but does say she resisted when he was carrying her or leading her out into the woods. She said after he accomplished his purpose he ran off, and that she went back to camp screaming; that on the way back to camp her husband met her. She also says that when she went into the bushes just before that she left her three children in the box car, the oldest being a girl about 12 years old. The husband of prosecutrix testified that he was at work about 100 yards from home that morning; that the first he knew of the trouble he heard his wife call him, and he went to meet her, and she told him a negro man overpowered her "and took it away from her." The sheriff of the county swore that the husband of the prosecutrix told him when he came there about 11 o'clock that his wife had been caught and slapped by a negro, but that the said husband told him that the negro did not accomplish his purpose. The husband denied making this statement to the sheriff. There is no suggestion from the husband that his wife was crying or excited or showed anything unusual in her appearance, or giving any of the other evidences naturally to be expected of a woman who had just been outraged, other than that he says he heard her calling. The next-house neighbor, Mrs. Millwee, heard and saw Mrs. Hallmark as she came back, and there was not enough in her appearance or what she was saying to even cause Mrs. Millwee to go out where she was, nor was Mrs. Millwee on the stand asked to detail anything in her appearance or any statement that she made. None of prosecutrix's clothes appeared to have been torn, and outside of her husband's statement that there appeared to be some bruises on her person, there was not anything in evidence to corroborate her in any way. She says she walked part of the way down to the place where the act of intercourse took place.

It is truly remarkable that a woman physically strong, weighing 120 pounds, and knowing herself to be in such easy calling distance of so many people, in the daytime, without apparently any tears or excitement, could be raped by a negro.

Appellant was without money or friends, and the trial court appointed counsel to defend him. He was given the death sentence, and the case had been pending in this court many months when the writer of the opinion came upon the bench. We have carefully considered the record in all its different aspects. We are fully aware of the feeling that exists in the breast of every white man for the sanctity of the home, and the virtue of woman, when he hears that a black man is charged with an offense of this character against a white woman. We believe that grave care should be exercised in such a case lest the judgment be swayed by passion. The character of prosecutrix, the peculiar circumstances surrounding the case, the severity of the penalty, are matters that appeal to us with such force as to cause us to deem it best to let another jury pass on the facts.

The judgment is reversed, and the cause remanded for another trial.

On Motion for Rehearing.

This case is before us upon the state's motion for rehearing, and it is strongly insisted that this court should either say that the evidence introduced in the trial court was insufficient, or that this motion should be granted and the judgment fixing the death penalty should be affirmed. It is intimated, in the arguments filed by the prosecuting officers in the court a quo, that all the evidence which might have a bearing upon this case was introduced on the former trial, and that if such evidence does not sufficiently establish the guilt of the appellant the case should be dismissed. With the course taken by the prosecution after the mandate is received by the court below we have nothing to do. We make some suggestions as to evidence which might have been produced before the trial court. After the state closed its evidence, the appellant introduced witnesses who testified that the reputation of the prosecutrix was bad for chastity, truth, and veracity. While it is disclosed from the record that the prosecutrix and her husband had lived in Ft. Worth, in Wichita Falls, and, as one of them says, "all around over the country," no effort was made on behalf of the state to produce any witnesses to testify in rebuttal of the evidence which is referred to with regard to the reputation of the prosecutrix. If we are to infer that the state does not desire or is unable to bring witnesses from any place to testify with regard to the good reputation of the prosecutrix, then we are in the necessary attitude of assuming that the state does not desire to combat the issue as to her reputation, and that the same shall stand in this record as that of one who is admittedly of bad reputation in said respects. What we have just said with regard to the reputation of the prosecutrix for chastity, truth, and veracity appears to be true with regard to the fact of her association constantly with negroes of both sexes, visiting with them in their homes, eating with them at their tables, and treating them on terms of equality both at her house and theirs. Notwithstanding the record makes it plain that there are other witnesses in the vicinity, both black and white, from which the state might produce evidence to combat this position, none were produced, and we are in the attitude of again necessarily inferring that these facts are taken to be true. So that we have here a case in which a negro man is charged with rape by force upon a woman of whom the state seems to admit that she is of bad reputation for chastity, for truth, and for veracity, and one who is an habitual associate with the negroes of her neighborhood. Not only does this seem to be true, but the record shows that when the prosecutrix left her house a few minutes after the appellant was there, she left her three children, the oldest being a girl 12 years of age, in the house. A few steps away was another white family with five members, and the testimony seems to indicate that they were at home. The oldest daughter of prosecutrix was on the stand as a witness, but was not asked anything by either side as to the question of hearing any outcry from her mother, either before or after the alleged rape, or as to the appearance and condition of her mother's body or clothing after she returned from the scene of the alleged rape, nor were any of the other children placed on the stand. Notwithstanding the fact that there were three negro families living nearby, and that the prosecutrix testifies that the next time she saw appellant after the alleged rape he was brought to her house by Will Harmon, her nearest negro neighbor, and apparently the first person who saw appellant after the alleged rape, Will Harmon was not put on the stand by either side.

This is supposed to be a case of rape by force and against the consent of the prosecutrix, committed by a negro man whom she states on the stand she had never seen...