Barnes v. State

• Decision Date: 24 March 1897
• Citation: 39 S.W. 684
• Parties: BARNES v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W. 684

BARNES v. STATE.

Court of Criminal Appeals of Texas.

March 24, 1897.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

Pink Barnes was convicted of seduction, and appeals. Reversed.

Miller & Williams, E. B. Muse, and Kearby & Muse, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of seduction, and his punishment assessed at confinement in the penitentiary for three years; hence this appeal.

1. On cross-examination of the prosecutrix, the defendant offered to prove that, in the act of intercourse between herself and defendant on the occasion of her seduction, she adjusted her person in order to accommodate and assist defendant in said act of intercourse; and also desired further to prove by said witness that in this first act of intercourse her private parts were not bruised or injured, and that she was not rendered sore or stiff, or in any wise discomforted physically, by any injury or soreness from said first act of intercourse; and questions for the purpose of eliciting said testimony were propounded to said witness by defendant's counsel. The bill of exceptions shows that, to the first question above asked, the court stopped defendant's counsel, and stated he would not permit further inquiry as to the position of the parties, and would not permit the witness to answer. Thereupon the other questions were asked said witness by defendant's counsel, and the court refused to permit the witness to answer or defendant's counsel to state what was expected to be elicited thereby or proved by the witness in answer thereto; and the court refused to permit any further questions to be asked said witness touching said issues and matters desired to be proved as aforesaid. The defendant then stated that he had other questions that he desired to ask said witness relating to the same matter. The court, in reply, stated: "The court declines to permit you to ask questions of that kind." The defendant then asked the court if he would be permitted to state in his bill of exceptions the questions he desired to ask, and what he expected to prove; and the court stated that he did not think the questions or answers on that subject had anything to do with the case, and would not permit further questions to be stated in the bill, nor anything further about the matter, touching said issue. Defendant reserved his exceptions to the remarks of the court in the presence and hearing of the jury, and the rulings and action of the court above referred to were also excepted to. Defendant insisted that said matters were pertinent to the issues involved in this case, to show that said act of intercourse was upon lust on the part of the prosecutrix, and as tending to show that the prosecutrix was not virtuous and chaste at the time of the alleged seduction. In the court's approval of this bill, reference is made to the whole examination of the witness on the matters involved in this bill. We have examined the testimony of said witness carefully, and fail to find any testimony of the prosecutrix regarding the adjustment of her person so as to respond to the defendant in the act of intercourse, and fail to find any testimony on her part in regard to whether her parts were injured or made to bleed, or that she was hurt or suffered pain in the act of copulation. With regard to that portion of the testimony desired to be elicited from her as to the adjustment of her person, dress, etc., we see no error in the action of the court as to this matter. The act of seduction apprehends consent on the part of the female, and that she adjusted her person in response to the desires of defendant would be in harmony with seduction, and the testimony on this point was absolutely immaterial. However, the defendant also proposed to ask the witness the question above referred to, as to whether her parts were bruised or rendered sore by said act of sexual intercourse, and if there was any blood on her person, etc., and the court refused to permit the witness to answer said question, or allow defendant's counsel to state what was expected to be elicited thereby, or proved by the witness in answer thereto. It occurs to us that this is a most extraordinary proceeding. If such a course is authorized, it would be impossible for defendant to conduct his case in accordance with the well-recognized rules of procedure in this regard. The question was pertinent and legitimate; that is, if it was intended to be shown by the defendant, in asking said question, that no pain was inflicted on the person of the prosecutrix, and that by reason of said act of intercourse no laceration was produced or blood ensued. In the first act of copulation between a virgin and an adult male person, these are the natural and ordinary results. While they may not attend every case, yet such cases are exceptional, and not the rule; and proof that such was not the case in this instance was legitimate testimony, as going to show that she was not a chaste virgin, as she asserted in her testimony, and so was not the subject of seduction. But as stated, we are not informed that this was the character of proof that the defendant proposed to elicit from this witness. His statement of the nature of the testimony that would be drawn out in this cross-examination was forestalled by the action of the court. He was not permitted even to state what he...