Bader v. State

• Decision Date: 17 November 1909
• Citation: 122 S.W. 555
• Parties: BADER v. STATE.
• Court: Texas Court of Criminal Appeals

122 S.W. 555

BADER v. STATE.

Court of Criminal Appeals of Texas.

November 17, 1909.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Ben F. Bader was convicted of rape, and he appeals. Reversed and remanded.

Callicutt & Call and El J. Gibson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appellant prosecutes this appeal from a conviction for rape, had in the district court of Navarro county on May 7th of this year.

Appellant was charged with the offense of rape upon one May Belle White, a girl under the age of 15 years. The evidence, indeed, shows her to have been at the time of the alleged rape, and at the time of the trial, less than 13 years of age. That she had had intercourse with some one, in view of the testimony of the physicians introduced, is unquestioned. Her testimony asserts that appellant had, with her consent, intercourse with her on three different occasions, once the latter part of February or 1st of March of this year, a second time on the first Sunday in March, and another time about the 20th or 25th day of March, this year. We deem it unnecessary to set out the details, which are, as usual, of the most disgusting character.

1. At the conclusion of the evidence, and before the argument of counsel, appellant filed a motion to require the state to elect upon which one of the occurrences or instances of intercourse it would rely for a conviction in the case. Under all the authorities, which are both numerous and uniform, this motion should have been granted. Batchelor v. State, 41 Tex. Cr. R. 501, 55 S. W. 491, 96 Am. St. Rep. 791; Powell v. State, 47 Tex. Cr. R. 155, 82 S. W. 516, 122 Am. St. Rep. 683; Stone v. State, 45 Tex. Cr. R. 91, 73 S. W. 956.

2. Appellant tendered certain evidence going to show circumstances of lewdness, familiarity, and tending to show that prosecutrix might have been, and raising the issue and tending to prove that she had been, guilty of acts of intercourse with other persons than appellant. This was designed to meet the testimony of the prosecutrix that she had intercourse with no other person than appellant, and to account for her condition and the condition of the vagina and the destruction of her hymen, as testified to by the physicians, and to prove that other persons than himself had in fact had sexual intercourse with prosecutrix. This was offered for the purpose, also, of impeaching the prosecutrix, wherein she testified that no other person than appellant had had carnal knowledge of her, and to explain the facts and circumstances testified to by the physicians, tending to show that prosecutrix had submitted to repeated acts of intercourse. This testimony is quite voluminous, and consisted of a great many circumstances and facts which we deem unnecessary to set out. The effect of all the evidence tendered, if believed, was well calculated to induce the jury to believe that the little girl had been intimate with several persons near her own age. The court, in explaining the bill, says that he ruled that such proof of other acts of intercourse would be admitted for such purpose, and that no proof of other acts of intercourse was in fact offered.

It was not contended by counsel for appellant that the mere fact that prosecutrix had allowed other persons to have intercourse with her would be any defense, but that this evidence was offered, as stated, for the purpose of explaining, consistent with appellant's innocence, the condition of the prosecutrix. That this testimony is admissible is well settled in this state. Bice v. State, 37 Tex. Cr. R. 43, 38 S. W. 803; Knowles v. State, 44 Tex. Cr. R. 322, 72 S. W. 398. The rule is thus laid down in 23 American & English Encyclopedia of Law, p. 872: "Where the condition of the private parts of a female is relied upon to show the fact of sexual intercourse, evidence to show other acts of intercourse between the prosecutrix and other persons is admissible to show the cause of such condition and to rebut the contention that it was caused by defendant." People v. Flaherty, 79 Hun, 52, 29 N. Y. Supp. 641; People v. Craig, 116 Mich. 388, 74 N. W. 528; Benstine v. State, 2 Lea (Tenn.) 169, 31 Am. Rep. 593; Shirwin v. State, 69 Ill. 60; Nugent v. State, 18 Ala. 526; People v. Knight (Cal.) 43 Pac. 7; People v. Betsinger, 58 Hun, 606, 11 N. Y. Supp. 916. Judge BROOKS agrees to the rule here announced, notwithstanding the expression, apparently, of a contrary view, in the Knowles Case, supra. The trial court seems to have recognized the rule, but to have thought that, because the...