Ball v. State

• Decision Date: 18 February 1903
• Citation: 72 S.W. 384
• Parties: BALL v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W. 384

BALL v. STATE.

Court of Criminal Appeals of Texas.

February 18, 1903.

Appeal from district court, Parker county; J. W. Patterson, Judge.

G. T. Ball was convicted of rape, and appeals. Reversed.

Preston Martin, Gilbert & Gilbert, and Brown & Bledsoe, for appellant. R. B. Hood and Sam Shadle, for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 99 years. The rape was committed upon Mayrtie Ball, a girl about 14 years old, the daughter of appellant by his former wife. Appellant married his first wife, the mother of prosecutrix, in West Virginia, and lived with her there for two or three years, and then separated from her, leaving his children with her. Appellant afterwards moved West, and came to the Indian Territory, where he married his present wife. His former wife in the meantime had died about a year antedating the offense here charged. Appellant had his two children, including prosecutrix and a son younger than she, named Bennett, to come from West Virginia to the Indian Territory. The record shows a course of ill treatment exercised by appellant towards his daughter in the territory, including various attempts to have carnal intercourse with her anterior to the commission of the offense charged. Some time in July or August, 1902, appellant moved with his family, including his wife and her children by a former husband, and one or two of his own by her, and prosecutrix and her brother, into Texas. They stopped about a month in Parker county, and the offense for which he was tried, as shown by this record, is alleged to have been committed by appellant on prosecutrix in Parker county some time during August. The testimony of prosecutrix shows that he had intercourse with her there, and, as far as we can judge from the record, this was the first time that appellant's private parts penetrated the private parts of prosecutrix. Appellant's wife was confined in Parker county, giving birth to a child. After this, about September, they moved to Johnson county, and lived there some time. A number of acts of ill treatment suggesting carnal intercourse or attempted carnal intercourse were shown to have been committed by appellant on prosecutrix in Johnson county. Prosecutrix and her brother were sent by appellant from here to West Virginia, their former home. They stayed there but a short time, not exceeding a month, and appellant is shown to have gone to West Virginia, and brought them back to Johnson county. Acts of ill treatment are shown to have been committed by him on prosecutrix in West Virginia; among other things, that she was forced to return with him from West Virginia to Texas. After prosecutrix came back to Johnson county, other acts of misconduct and ill treatment were shown by appellant toward prosecutrix. Before this, however, it appears that his wife had separated from him, and prosecutrix's testimony tends to show that appellant, when they returned to Johnson county, proposed that she should live with him, and was in the act of fitting up a house with furniture, when he was arrested. This is a sufficient statement of the case to present the questions of law that arose during the trial.

Appellant made a motion for continuance on account of the absence of his wife, who, it was alleged, at the time of the trial was in the Indian Territory; that when she left Texas she promised appellant to return to his trial, but at the time was too ill to travel. This is supported by an affidavit made by the brother of appellant. No process was served on Mrs. Ball prior to her leaving Texas; nor was any attempt made to take her depositions. It occurs to us that the application shows a lack of that diligence required by law that should have been exercised in order to secure the attendance of his wife. Ordinarily, a man might depend on his wife attending court, but in this particular case it appears appellant and his wife, about the time of his arrest, or before his arrest, had separated on account of some disagreement; and it would seem this would put him on notice of the necessity of using process to compel her attendance or take her depositions. But aside from the lack of diligence on the trial, it was made to appear that she was a very important witness, inasmuch as prosecutrix's testimony developed the fact that nearly all, if not quite all, of the ill treatment which she had received at the hands of appellant, occurred in the presence or within the knowledge of Mrs. Ball, which rendered her a very material witness. We are inclined to the view that, under the circumstances of this case, a new trial should have been granted, in order to secure her attendance or her deposition.

By the first and second bills of exception appellant raises a question as to the admissibility of the testimony of prosecutrix, Mayrtie Ball, and Felix Jones, showing misconduct and abuse by appellant of prosecutrix....