Battles v. State

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Ramsey
• Citation: 140 S.W. 783
• Parties: BATTLES v. STATE.
• Decision Date: 30 November 1910

140 S.W. 783 BATTLES
v.
STATE. Court of Criminal Appeals of Texas. November 30, 1910. On Motion for Rehearing, June 21, 1911. Dissenting Opinion, November 17, 1911.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

John Henry Battles was convicted of rape, and he appeals. Affirmed.

Farrar & Pierson, W. P. Hancock, and A. S. Baskett, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is the second appeal of this case. The opinion of the court on the first appeal will be found in 53 Tex. Cr. R. 202, 109 S. W. 195. The trial from which this appeal results was had in the district court of Ellis county on February 1st of this year, and resulted in a verdict of guilty, in which appellant's punishment was assessed at confinement in the penitentiary for a period of five years.

We deem it unnecessary to make any detailed statement of the facts. It appears in evidence that prosecutrix, Ida Dutton, was born on the 29th day of August, 1892. Her testimony is to the effect that the act of intercourse which is the basis of the prosecution took place between herself and appellant about the 1st of November, 1905. Appellant

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was at the time a man some 43 or 44 years of age. He had married early in life a sister of the father of the prosecuting witness. This wife it seems had died, however, some years before this, and he had married again, and was a married man living with his wife at the time of the alleged rape. The evidence further shows that appellant was a farmer living some five or six miles from Waxahachie, and not very far from prosecutrix. Her father it seems was an improvident and somewhat thriftless man, a tenant on a farm near where appellant lived. Originally he had lived in Alabama, and had come to Texas in 1896 at the suggestion and by the aid of appellant, and had stayed with him some month or six weeks when he first came to Texas. The evidence justifies the conclusion that in the spring of 1905 appellant became very much infatuated with Ida Dutton. It is in evidence that he carried her to Waxahachie frequently, and bought all sorts of articles for her, consisting of clothing, stockings, shoes, slippers, and other articles of clothing, and was persistent and assiduous in his attentions to her. The evidence shows that once or twice he had carried her to Ennis, and soon after the act of intercourse testified to had gone with her father and herself to the Dallas fair. A number of letters were read in evidence, which, while somewhat guardedly written, are only consistent with the idea of a foolish affection for this young girl as well as apparent jealousy of some boys or young men in the neighborhood, who during the year 1906 had begun to pay her some attention. Ida Dutton testified that about the 1st of November, 1905, one night while returning from Waxahachie, in Mustang bottom, while in the buggy, appellant had intercourse with her over her protest, and despite her remonstrance, and that she had never had intercourse with any one else before this. This is denied by appellant. Ida Dutton made no outcry, or gave any information concerning the outrage, but continued her relations and social intercourse with appellant, and he continued his attentions to her in very much the same way as he had theretofore done. Early in 1906, the father of prosecutrix, with his family, moved to near Midlothian, some considerable distance from where appellant lived. The evidence shows that appellant helped the parties to move and went with one load of their goods in a wagon alone with prosecutrix to the place to which Mr. Dutton was moving, and that the parties stayed one night at the house of a Mr. Lane. After this removal to Midlothian, the evidence shows that appellant went with prosecutrix to Waxahachie a number of times, and his relations continued up to about June, 1906. The testimony shows that in September, 1906, the mother of prosecutrix claimed to have had a dream in which dream it was revealed to her that prosecutrix had been delivered of a child, and that it favored appellant, and she told prosecutrix of this dream, and insisted that there had been something wrong in their relations. This prosecutrix repeatedly denied, and her mother finally said to her she knew that she had had intercourse with appellant, and that, if she was ashamed to tell it, she, the mother, would put something over her head, and that prosecutrix then got behind the door and admitted the act of intercourse which is the basis of this prosecution. In explanation of her not telling the mother Ida Dutton says that she did not want to tell them; that she was young, and did not know anything like this would ever come up; that she just thought it would be a reflection and disgrace to her, and that would be all; that she did not know such matters were carried into court. It also appeared in evidence that probably during 1906 appellant went with another upon the note of Mr. Dutton for a considerable sum, and there was some claim that Dutton had sold a horse covered by mortgage to secure this indebtedness, and that, in view of the unpleasantness growing out of this transaction, appellant took from Mr. Dutton a pair of mules which he had theretofore loaned him, and the conclusion is sought to be established that this prosecution resulted from the ill will growing out of these transactions, and it is also intimated that it was designed to extort money from appellant. There was no substantial issue made on the question of prosecutrix's age. There are a number of questions raised on this appeal, some of which did not appear on the former appeal, the most important of which we will notice.

1. Among other things, the state proved by Ida Dutton, as well as by appellant, over his protest, that he was at the time of the act of intercourse, which is made the basis of this prosecution, a married man. This was at the time objected to, and is now assigned as error. The objection appears in the statement of facts, and is to the effect that the question was immaterial and prejudicial to the defendant. It will be noted this objection is very general, but, if sufficient to raise the question, we think, under the facts of this case, the action of the court in permitting this testimony was not erroneous. The record does not indicate on what ground this testimony was admitted, but it was evidently admissible on this theory. The statement of facts shows and the proof is conclusive, both growing out of the nature of their relations and the correspondence, that appellant was as devoted and attentive to this young girl as the most ardent lover could or would have been. If he had been a single man, these attentions would have been consistent with an innocent purpose, and be justified on the ground that they were such as any honorable man might have shown a good woman whom he loved, and whom he expected to marry. In view, however, of the fact that appellant was a married man, and therefore the legal bar which stood between any honorable

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relations with the prosecutrix, it was a circumstance tending to show the nature and character of his relations, and that by the attentions, gifts, conversations, and his general conduct it was his purpose to seduce and corrupt this young girl. There are cases where it has been held error to admit proof that a defendant is a married man. Such is the case of Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849, and also the same case in 74 S. W. 557. It should be remembered, however, that in the Smith Case it appeared that the intercourse was not only abundantly proven, as the court says, by positive evidence, but was admitted. In that case it also appears that the verdict was for 75 years, which raised a reasonable inference of prejudice. In this case the proof of intercourse rested upon the testimony of prosecutrix, and was distinctly and vehemently denied by appellant. We think in the Smith Case the opinion of the court may well be justified and supported, but in a case like this it seems to us that on reason it became not only admissible, but highly important, to prove the fact that appellant was at the date and time of the intercourse a married man, as lending support to the state's contention, and as evidence of a line of conduct out of harmony with any innocent purpose.

2. On the trial proof was offered by the state of attentions, visits, journeys with prosecutrix, and purchases for her both before and after the act of intercourse. This was objected to on the ground that matters occurring between the parties prior to the alleged rape, but having no connection with it, are immaterial and irrelevant and inadmissible in evidence, and that they are not admissible even as matters of inducement. The contention is also made that matters and things occurring after the alleged offense was committed, not connected with the offense, and of an inflammatory nature, or showing mistreatment, are wholly immaterial and inadmissible in evidence. If it be granted that the testimony is not connected with the offense and had no relation thereto, the objection should be sustained, but we think that these matters were so directly and intimately connected with the act of intercourse as to be clearly admissible. It should be stated that no act of intercourse except the one alleged in the indictment was permitted to be proved in such manner as could possibly furnish the basis of conviction for rape. Acts of attention and fondness both before and after the act of intercourse were admitted. These prior acts were admissible as affecting the probability of the act of intercourse either with or without the consent of prosecutrix, and as tending to show the motive and purpose of appellant, and such seductive arts and purposes as to make and render the prosecutrix an easy, if not willing, subject of his lust. The subsequent acts of fondness and attention were equally admissible to...