Bartlett v. State

• Decision Date: 05 November 1930
• Docket Number: No. 13605.,13605.
• Citation: 38 S.W.2d 103
• Parties: BARTLETT v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W.2d 103

BARTLETT v. STATE.

No. 13605.

Court of Criminal Appeals of Texas.

November 5, 1930.

State's Rehearing Denied May 6, 1931.

Commissioners' Decision.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

J. J. Bartlett was convicted for assault to rape, and he appeals.

Reversed and remanded.

Bunnenberg & Nelson, of Wichita Falls, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, assault to rape; penalty, five years in the penitentiary.

Appellant at the time of the alleged commission of the offense was a deputy United States marshal residing in the town of Wichita Falls, and had an office in the basement of the court house. He was at this time sixty-two years old. The prosecutrix was a child about seven years old, who testified in substance that appellant took her to his office in the daytime and there assaulted her. Her stepmother, Mrs. Williams, and others testified to a recent complaint made by prosecutrix. The appellant introduced the sister, grandmother, and other blood relatives of prosecutrix, who testified to the bad reputation of her stepmother for truth and veracity and to other facts tending to support the appellant's theory that her stepmother was the instigator of the charge against appellant. The county health officer, a physician, was introduced by appellant as a witness, who testified he made an examination of the private parts of the little child alleged to have been assaulted a short time after the alleged assault, and found no bruises, lacerations, or indications of an assault. Appellant denied in toto the transaction, claiming that Mr. White, at whose house the stepmother and the little child boarded, was an applicant for his position. Other testimony was introduced showing the surroundings at the place of the alleged assault which tended to prove it not reasonably probable that a man would assault a child at such place.

The evidence is such as to make appellant's guilt gravely doubtful. Considering this record as a whole, we regard the evidence as meagerly sufficient, if at all, to support the conviction. In view of this state of the record, we think the following shows error, which may have turned the scales against appellant: The father of the little child was permitted to testify in part over objection that appellant came to where he was some week or so after the alleged rape and spoke to him, to which he answered: "I am an invalid and seems like the world knows it, they have taken advantage of me." The district attorney, over objection, was permitted to state to the jury that the child's father was "a man with a broken hand and paralyzed and wholly unable to defend himself or the honor of his family." The testimony was clearly inadmissible, and tended to prove no issue in the case, and its effect plainly was to create prejudice against appellant, particularly so in connection with the comments of the prosecuting attorney, recited above. For this error, the judgment is reversed, and 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.

HAWKINS, J., absent.

On State's Motion for Rehearing.

MORROW, P. J.

The state contends that the judgment should be affirmed. In passing upon the motion, a more comprehensive statement of the evidence than that contained in the original opinion is deemed necessary. In the afternoon of Saturday, August 10, 1929, the appellant, sixty-one years of age, in company with his wife, took their son, Travis, twelve years of age, to a barber shop, after which they proceeded to the home of Mrs. White, where Mrs. Bartlett remained. Bartlett requested and received permission to take Tempie Mahota Williams and her eight year old stepsister, Govey Howard, together with Travis Bartlett, to a picture show. The Williams family and the prosecutrix were residing at the time at the home of Mrs. White. Touching what followed, the testimony of the prosecutrix is in substance this: Before going to the picture show, the children and the appellant went to the courthouse and entered the office of the appellant, which was situated in the basement. The appellant was a United States deputy marshal, and occupied as an office a room in the basement of the courthouse. After leaving the barber shop, Travis accompanied Govey Howard to the picture show. From the testimony of the prosecutrix we quote:

"When we went in Mr. Bartlett's office he locked the door and then he put me in one chair and stated that it was too high and then put me in another chair and stated that was too low, and then he laid me on the bed. When he put me in the chair he did something else with his trousers. He unbuttoned them. I was wearing little blue bloomers that day. There was something done with them. He took one leg off, Mr. Bartlett did. Mr. Bartlett took one leg of my bloomers off. I know what a man's privates are. Its that thing down between his legs. He had that out and I saw it. While that was going on someone came to Mr. Bartlett's room. I do not know who it was. It was a man. Mr. Bartlett just talked about some business. That was while I was in the chair. Before this man came in he had to unlock the door. He buttoned his pants up before he unlocked the door. I don't remember what this man and Mr. Bartlett talked about. This man left the office after awhile. When this man left Mr. Bartlett shut the door and laid me on the bed. There was a little cot in Mr. Bartlett's office. After he laid me on the cot he finished it. He laid me on the bed and he was on top. He unbuttoned his pants and he took out his thing he's got down between his legs. My bloomers were just pulled down. Mr. Bartlett put this thing between my legs, right close to that little place between my legs. It was touching it. He moved it up and down. It mashed me a little bit and I was sore a little bit. He kept on doing that just a little while. Then he got some shirts and told us to wipe ourselves. I wiped myself. I wiped some little sticky white stuff off.

"I had not seen anything like that before. He wiped with the shirt just what I did, that thing he had down between his legs. We then went to the picture show. While we were down there Mr. Bartlett told me not to tell any one. He didn't say why not to tell it; he just told me not to tell. He didn't say anything about anybody being in the other office, about some officers being out there. He told me not to scream or holler for there were some officers in the other room. He did not say what they would do.

"I told Jack about this, and I told Govey. Govey told mother. I talked to her and told her. I told daddy. Mother told Mrs. White and I was there. I talked to Mrs. White at the same time. I told mother and daddy and Mrs. White the same day in the morning that I came over and talked to his man. When we girls over there got up in the morning we took a bath. Me and Jack and Govey all bathed together. All three of us bathed that morning but that was not the time I told Jack and Govey."

Mrs. J. E. Williams, the stepmother of the prosecutrix, testified that in the afternoon of the day mentioned the appellant, with her consent, left the home of Mrs. White with the prosecutrix and her sister Govey to go to a picture show, and returned with the children at about 6 o'clock that evening. About a week thereafter she had a conversation with the prosecutrix, "which conversation had something to do with what happened on the previous Saturday. She accused someone of doing something to her." This was immediately communicated to the husband of the witness, the father of the prosecutrix, in the presence of the prosecutrix and Mrs. White.

Mrs. White testified that on the day of the appellant's arrest she heard a conversation in which the prosecutrix said that something had happened to her. Mrs. Williams was present.

Richardson, a constable, gave testimony for the state. He said that on the day in question he entered the office of the appellant on business and saw a little girl sitting in a chair, where she remained during a short conversation between the appellant and the witness. From this witness the following appears: The constable's office was originally one large room. The United States deputy marshal's office was carved out of the room by a thin partition of beaver board or sheet rock. There were two doors to this office. One door opened to the street and the other opened into the constable's office. A light usually burned in the marshal's office. There were windows with frosted glass. After conversing with the appellant, the witness stepped into his own office about four feet from the door while waiting for a man with whom he had an appointment, and remained there for a few minutes. While standing there, Bartlett opened the door and asked Richardson if Travis had been seen in the appellant's office. From Richardson's testimony we quote: "He came out of the office just as I did. I recall him saying as 1 stepped out of the office, he said, `I want to find my boy,' * * * and I believe he went down towards the hall."

The witness said further: "As I recall it, he came out of the office with me. I don't know where he went after that."

The witness said that the wall was covered on either side with sheet rock; that it was not a substantial wall, but was what he would call a "make-shift."

Govey Howard, a state's witness, testified that she went to the barber shop together with her brother Odie and Mahota, riding with the appellant in his car. She and Odie got out of the car near the barber shop and left Mahota and Mr. Bartlett in the car. Appellant told them to go to the picture show, which they did, and, after waiting a good little while, Mr. Bartlett and Mahota came. After their arrival, the children went to the show, and Mr. Bartlett returned to the office. The witness, after waiting a short time...