Barnett v. State

• Decision Date: 25 March 1903
• Citation: 73 S.W. 399
• Parties: BARNETT v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 399

BARNETT v. STATE.

Court of Criminal Appeals of Texas.

March 25, 1903.

Appeal from District Court, Johnson County; W. Poindexter, Judge.

A. J. Barnett was convicted of rape, and appeals. Reversed.

F. E. Johnson and J. B. Warren, for appellant. Mason Cleveland, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape on his stepdaughter, a girl under the age of 15 years, and his punishment assessed at confinement in the penitentiary for a term of 10 years.

The rape was alleged to have been committed on Ruthie Walker on or about the 16th day of March, 1902, with her consent. The prosecution and conviction were had on a rape, which the testimony for the state showed was committed on or about the 16th day of March. During the trial, and while the testimony was being developed, the state introduced a number of other rapes shown to have been committed by appellant on prosecutrix; the first rape having been committed some 4 years before, when prosecutrix was only 9 years of age. The details of this offense were gone into, and it was shown to have been done by force, against the will and consent of prosecutrix. This was followed by a number of other rapes and cruel treatment on the part of appellant toward prosecutrix, the details of some of which were gone into. Appellant objected to all this testimony on the ground that it was not connected with the rape in question, and did not tend to solve any issue in the case, but merely served the purpose of prejudicing the jury against him. In Hamilton's Case, 36 Tex. Cr. R. 372, 37 S. W. 431, this character of testimony was held admissible under the facts of that case, and that case appears to have been subsequently followed. Manning v. State (Cr. App.) 65 S. W. 920, 3 Tex. Ct. Rep. 566; Cooksey v. State (Tex. Cr. App.) 58 S. W. 103. Without discussing the relevancy of the testimony under the peculiar facts of said cases, so far as they conflict with the principle here announced they are overruled, and we here hold that in a case of rape, where the prosecutrix is under the age of consent, such testimony is only admissible where it tends to solve some disputed fact or issue in the case. In other words, we can see no difference, in the introduction of testimony as to other offenses, between a case of rape and any other criminal charge. Indeed, the reason of the rule excluding such testimony would appear to be stronger in a rape case than in any other character of offense, inasmuch as evidence of such extraneous crimes is more calculated to inflame the minds of the jury in a rape case than in any other. With regard to the admission of extraneous crimes in evidence, the rule is stated thus in the authorities: "If the evidence tends to establish the res gestæ, or to prove a relative or competent fact or circumstance...