Alexander v. State

• Decision Date: 28 February 1934
• Docket Number: No. 16570.,16570.
• Citation: 72 S.W.2d 1080
• Parties: ALEXANDER v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W.2d 1080

ALEXANDER v. STATE.

No. 16570.

Court of Criminal Appeals of Texas.

February 28, 1934.

State's Rehearing Denied June 29, 1934.

Commissioners' Decision.

Appeal from District Court, Franklin County; I. N. Williams, Judge.

R. L. Alexander was convicted of incest, and he appeals.

Reversed and remanded.

T. C. Hutchings, of Mt. Pleasant, and Wilkinson & Wilkinson, of Mt. Vernon, for appellant.

John A. Cook, Dist. Atty., of Mt. Pleasant, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of incest, and his punishment assessed at confinement in the state penitentiary for a term of 8 years.

The statement of facts in this case covers 104 pages and the transcript, which is very voluminous, contains 77 bills of exception, but we deem it unnecessary to consider each of these in detail. The testimony as adduced by the state, briefly stated, is as follows: Mollie Mae Alexander, the prosecuting witness in this case, is the granddaughter of the appellant, R. L. Alexander, and the daughter of Alvin Alexander, who is the son of the appellant. The prosecuting witness testified that her mother died some 12 years ago when the witness was about 6 years old. She had lived with her grandparents most of the time since the death of her mother. In 1931 she went to live with her father, who had remarried since the death of his wife, but returned to the home of her grandparents about the 17th day of June, 1932. On the 1st day of January, 1933, she and her grandfather were at the barn picking off peanuts, at which time he had an act of intercourse with her. She said that she did not submit to that act of intercourse with him of her own free will. He told her, if she did not do it, he would blow her damned brains out. This happened in Titus county, Tex. She further testified that she was 18 years of age on the 3d day of January, 1933, about two days after the act of intercourse. She testified that she had been out at the barn with her grandfather about 15 minutes before the act of intercourse occurred; that there were some sacks with cotton seed in them, and he asked her to lay down on the sacks, and she told him she did not want to, and he said, "You are anyway," and he shoved her over and said, "If you don't you will be sorry for it"; that he pulled her dress up and then unbuttoned his trousers and had intercourse with her. She asked him to quit, but he did not do it. He put a cotton sack down on the floor for her to get on; the sack was not full of seed, but had some seed in it. She said she had no trouble staying on the cotton seed. At the time that this intercourse occurred, there were six of them living in the home of her grandfather; they were her Uncle Prim, Uncle Robert, her grandfather and grandmother, her brother Eugene, and herself. All were grown, except her brother, who is 14 years old. There is no testimony in the record to show that the appellant at the time of the alleged act of intercourse had any gun or weapon with which to inflict any serious bodily injury upon her or blow her brains out. There is no testimony that the prosecuting witness resisted the act of intercourse. There is no testimony that her clothes were torn, that she made any outcry, or that she cried. She further testified that she never told any one of this act of intercourse or her condition until about 2 weeks prior to the time that her grandfather was arrested, when she told her sister, Mrs. Garrison. Mr. Wilhite testified that he was in the drug business at Mt. Pleasant and knew the defendant. Along some time in January or February the defendant came into his place of business and asked the witness if he had any silk sanitary sponges. The witness advised the defendant that he did not, but the witness ordered some later, and appellant bought some about two weeks later. He bought one. About two weeks later he came in and bought another, but he did not say what he wanted with them. Mr. Robert Montgomery testified that in March, 1933, he had a conversation with the defendant, at which time defendant asked him if he knew anything that would produce an abortion. The witness told the defendant it would cost some money. There is also considerable testimony showing that the prosecutrix went with different young men and went with a certain young man to whom the appellant vigorously objected and asked her not to associate with said young man, as he was not that character of man with whom he would like to see her associate. The defendant reported prosecutrix' association with said young man to her father, who at one time whipped her for it. The prosecutrix in her testimony did not complain of any mistreatment, coercion, or domination on the part of the defendant except in this particular instance.

At the conclusion of all the testimony, the appellant requested the court to instruct the jury to return a verdict of not guilty, which request was denied, and the appellant then requested the court to charge the jury as a matter of law that the prosecutrix was an accomplice and submitted a special requested instruction with reference thereto, which the court refused to give.

Incest is an offense against society in which both parties ordinarily engage with the same intent and purpose; hence both parties to the offense are principals and equally guilty. In determining whether force or threats are sufficient to take the prosecutrix out of the realm of an accomplice, her conduct at the time of the act as well as subsequent thereto, her age, physical strength and all the surrounding circumstances must be taken into consideration. In the case under consideration, the prosecutrix is a strong, healthy young woman, 18 years of age, while defendant is a man 65 years of age and in ill health. No force was employed, no physical resistance is shown, no outcry was made, and no complaint made to either of her two uncles who lived at the same home, or to her sisters, father, or grandmother, until her appearance revealed her pregnancy.

We have examined the record carefully, and have reached the conclusion that under the facts in this case the prosecutrix is an accomplice, and the court should have so instructed the jury. In support of the views herein expressed we refer to the following authorities: Pate v. State (Tex. Cr. App.) 93 S. W. 556; Dodson v. State, 24 Tex. App. 518, 6 S. W. 548. In the case of Dodson v. State, supra, Judge Willson, speaking for this court, said: "Although the witness Rosa, with whom the incestuous intercourse is alleged to have been committed, states that she did not consent to the intercourse, it is very clear from her testimony that she made no serious, determined, or positive resistance to it." So, in this case, it is clear from the testimony of prosecutrix that she made no serious, determined, or positive resistance, and therefore under the rule announced in the Dodson Case, supra, it was error for the court not to instruct the jury as a matter of law that the prosecutrix was an accomplice.

There are numerous exceptions to the closing argument of the district attorney, which will doubtless not be repeated in the same form on another trial, and therefore it is unnecessary for us to discuss the same, except to say that the same appears to be rather prejudicial in its nature.

The appellant in due time filed his exceptions and objections to the court's charge, especially to paragraph 9 of said charge. We believe that under the peculiar facts the court should have reformed his charge in view of the objections addressed to the same so as not to have limited statements which the prosecutrix may have made to impeachment purposes only.

For the errors above discussed, it is our opinion that the judgment of the trial court should be reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, Judge.

In its motion for rehearing the state strongly urges that we were wrong in holding it necessary to reverse the case because the trial court declined to charge the jury as a matter of law that prosecutrix was an accomplice. Authorities are cited in the motion. We have examined them with others, and have concluded that this claim is well founded.

The court below submitted the question of the complicity of the girl to the jury in a manner favorable to appellant. After telling them that a conviction could not be had on the testimony of an accomplice unless corroborated, and defining an accomplice properly, the court charged as follows:

"Now bearing in mind the foregoing definition, if you believe from the evidence beyond a reasonable doubt that the defendant, R. L. Alexander, did on or about the 1st day of January 1933, in Titus County, Texas, carnally know the said Mollie Mae Alexander as charged in the indictment, you will find him guilty of incest and assess his punishment at imprisonment in the penitentiary for not less than two nor more than ten years, and unless you so find beyond a reasonable doubt you will acquit the defendant and say by your verdict not guilty. * * *

"You are further instructed that the witness Mollie Mae Alexander was not an accomplice if you find from the evidence that she did not consent to said carnal intercourse, but if you have a reasonable doubt whether she did consent to said act or did not oppose the same, then in such event she would be an accomplice.

"And you are further instructed that the witness Mollie Mae Alexander would be an accomplice, as that term is defined herein, unless she made resistance to the act."

Turning to the testimony, we find that prosecutrix was asked three different times about the facts bearing on this aspect of the case. She said in one place: "No sir, I did not submit to that intercourse with him of my own free will. He told me...