Austin v. State

• Decision Date: 20 June 1923
• Docket Number: (No. 7457.)
• Citation: 254 S.W. 795
• Parties: AUSTIN v. STATE.
• Court: Texas Court of Criminal Appeals

254 S.W. 795

AUSTIN v. STATE.

(No. 7457.)

Court of Criminal Appeals of Texas.

June 20, 1923.

Rehearing Denied October 17, 1923.

Appeal from District Court, Red River County; Austin S. Dodd, Special Judge.

Tom Austin was convicted of incest, and appeals. Affirmed.

Chas. Roach, of Paris, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Red River county of incest, and his punishment fixed at 10 years in the penitentiary.

As qualified by the learned trial judge appellant's first bill of exceptions presents no error. It was accepted, and filed with the qualification attached. It appears that a physician, testifying for the state, was asked on direct examination as follows: "You say it was a normal child?" Witness answered, "No, I said that the period of gestation was normal. The child. * * *" At this point appellant objected upon the ground that the child's condition at birth was inadmissible. The court overruled the objection, but states in his qualification to said bill of exceptions that no question as to the child's condition at birth, whether normal or abnormal, was further asked. With the qualification the bill shows no error.

Appellant's bills of exception Nos. 2 and 4 are reserved to the refusal of the testimony of witnesses who had known appellant a number of years, and had never heard his reputation for virtue and chastity questioned. These bills of exception are also qualified, the learned trial judge stating that the witnesses at no time said that they knew the general reputation of the accused in the community in which he lived in the regard mentioned. There was no error in rejecting the testimony. A witness may be well known to another party and may have been so known for many years, without any knowledge on the part of the latter of his reputation in a given regard in the community in which the person inquired about may live.

Appellant introduced as a witness the daughter with whom the incestuous intercourse was charged. She testified that at no time had appellant ever had carnal knowledge of her, but stated that she had slept with him after her mother's death for practically a year before the birth of her child; that he had heart disease and needed her attention. On cross-examination the state asked her if she had not had a conversation with the district attorney soon after the birth of her child in which she told him that she was not going to tell who the father of her child was "because I don't want to get papa into trouble." The daughter admitted that she did make this statement, but claimed that what she meant was that her father would kill the person who did it. We cannot agree with either contention made by appellant in his objection to this testimony. It was admissible for impeachment, if denied, and, being admitted by the daughter, became admissible as affecting her testimony upon the trial. Whether she made this statement or not was a material matter, and it related directly to the question of whether her father had had such incestuous intercourse with her. With her explanation it was entitled to go to the jury as affecting her credibility. Neither do we find from the court's qualification to the bill of exceptions that appellant's contention that he was not present is sound. It would be immaterial whether he was present or not if the matter be properly admitted as impeaching testimony of the daughter.

Appellant raises a number of objections which substantially involve the proposition next herein discussed. The state made a case of incest against appellant dependent practically upon the proposition that it showed him to be the father of his daughter's child, born out of wedlock, following almost a year of sleeping with him, during which time she went with no young men and received no company. To rebut or destroy this case the girl in question was introduced as a witness for appellant. She swore in chief that her father had had no intercourse with her. We have then an issue which might be stated as follows: The state contends that appellant's wife was dead, that he was denied the natural outlet of indulgence of carnal desire, that his 16 year old daughter began sleeping with him and continued to do so for nearly a year, at the end of which time she gave birth to a child, and during this time she received the attention of no man and went with none anywhere but was accompanied to church and other places where she went by this appellant. She was delivered of a child in her own home in the presence only of appellant and a doctor summoned by him. Based on these facts the state asserted appellant's paternity of the child, and his sequent incestuous intercourse with his daughter. In reply to this appellant offered the testimony of his said daughter to the effect that she had not been carnally known by him, that she had slept with him because he had heart trouble which called for attention.

The state on cross-examination asked the daughter relative to statements theretofore made by her as to the paternity of her child, and extended its inquiry as to details in some of the matters contained in her answers, the manifest purpose of such cross-examination being to lay predicates for the impeachment of the witness. She was asked if she did not tell the county attorney that a man whom she did not know came in a covered wagon to her father's house and there had intercourse with her and that the child resulted therefrom. This she denied. She was asked if before the grand jury she had not first mentioned a man named Gray, and had finally said that Ben Hawkins was the father of her child. Gray she denied, but answered that she had told the grand jury that Hawkins was the father of her child and she now averred this fact to...