Battles v. State

• Decision Date: 11 March 1908
• Citation: 109 S.W. 195
• Parties: BATTLES v. STATE.
• Court: Texas Court of Criminal Appeals

109 S.W. 195

BATTLES v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1908.

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

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

Farrar & Pierson, W. P. Hancock, and J. T. Williams, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of rape, and his punishment assessed at five years' confinement in the penitentiary.

Appellant asked the court to give the jury the following charge: "You are instructed that one of the issues in this case is that the offense, if any, occurred within one year prior to the filing of the indictment herein, which is September 28, 1906, and if from the evidence, if any, or from the lack of evidence, upon this issue, you have a reasonable doubt thereon, you will acquit defendant." We think the evidence in this case suggested the issue, and the court should have given the charge. There is a marked lack of certainty in the evidence as to whether the offense was committed within one year of the filing of the indictment.

Bill of exceptions No. 1 complains of the following: The state introduced Ida Dutton (the prosecutrix), and she testified that about November 1st, in Ellis county, Tex., the defendant had carnal intercourse with her, effecting penetration; that at said time she was under the age of 15 years, not being the wife of appellant. On cross-examination said witness testified that she was going to swear that she saw one Warren Sharp, in the year 1904, come into her mother's room one night armed with a pistol, with intent to do some violence to her mother. She further testified that she did not tell any one of defendant having intercourse with her for nearly a year after it occurred, to wit, September 6, 1906; that she then told it for the first time to her mother, under the following circumstances: "Her mother on that morning (September 6, 1906) told her (Ida) that she (her mother) had had a dream, and had dreamed that she (Ida) had had a baby, and that it looked like defendant, and her mother commenced asking her whether defendant had had intercourse with her, which she at first denied, but, after her mother had persisted in her question, she admitted the intercourse." It further appeared in the testimony, from the witness W. H. Fears, as a matter of family history, obtained from the testimony of J. H. Dutton (prosecutrix's father), that at certain periods Mrs. Dutton (prosecutrix's mother) had insane delusions, and that she, the said Mrs. Dutton, was suffering from one of those periods at the time she claimed to Ida that she had a dream as hereinbefore stated. Thereupon the defendant offered to prove by the witnesses hereafter named, to wit, Ed Whittaker, G. H. Taylor, and Warren Sharp, that in the year 1904 said Mrs. J. A. Dutton lived in Haskell county, and that during said year said witness became temporarily insane, and during such condition of temporary insanity she repeatedly accused Warren Sharp with having come into her room one night, armed with a pistol, with intent to kill her, or do her other physical violence, and further said that Warren Sharp and her husband had conspired to kill her, so that her husband could marry a local school-mistress; and said witnesses would have qualified and given other circumstances showing insanity at the time on the part of Mrs. Dutton, and that such charges were in fact untrue, but at the time said witness (Mrs. J. A. Dutton) was afflicted with an insane delusion as to such charges; and the said Warren Sharp would have testified that he never in his life went into Mrs. Dutton's room at night with a pistol, and never did attempt upon her any violence, and never did conspire with any one. Defendant further offered to prove, and could have proven, by the witnesses Tom Chambers and his wife, who were present at the trial, that at their house in Ellis county, during the summer of 1905, the said Mrs. Dutton repeated to them, in the presence of Ida Dutton, the aforesaid charges made against Warren Sharp, and told them that Ida and her son Tom would have sworn that they were true, and had her husband (J. A. Dutton) stuck to her in the charges they would not now have to work so hard, but would have gotten some mules and money out of Sharp. Defendant, in support of his contention, in addition offered to prove and could have proven by the county attorney, and by the assistant county attorney, that the said Mrs. J. A. Dutton was sworn as a witness, and put under rule as a witness upon this trial, believed to be sane at the time, but that since the trial commenced, and now, it is believed by them that she has become insane, and tells them that the facts she charged against Warren Sharp are true. Appellant further contends that said testimony was material and relevant, since the prosecutrix had affirmed her willingness to swear to the happenings of the charge made against Warren Sharp by her mother as a result of an insane delusion, and her willingness and actual testimony against Battles (the defendant) brought about, as defendant contends, by an insane delusion of her mother, through an imaginary dream, was a strong circumstance touching the credibility and weight of the testimony of said witness; that said testimony was admissible on the theory of conspiracy to extort money from appellant, and as affecting the credibility and weight of the testimony of prosecutrix.

The foregoing long bill of exceptions is approved with this qualification: "Warren Sharp was sworn as a witness, and testified for defendant fully and without objection by the state, in which he said no demand for money was ever made on him by the Duttons. With reference to what the bill states as to what Ida Dutton was going to swear about Warren Sharp entering her mother's room, the Court of Criminal Appeals is referred to what she testified before the court, when the jury was retired, in regard to this matter, viz.: `That she saw some one in her mother's room, and took it to be him. I didn't know who else it was. Of course, he was there. I did not see him with a pistol.' The court's view was that the offered testimony could have been used only for the purpose of testing Mrs. Dutton's competency as a witness, if she had been offered by the state; and, this not having been done, that the testimony was inadmissible." We hold the ruling of the court was correct. Mrs. Dutton had insane delusions, in which she had induced the prosecutrix to make false accusations against third parties cognate in nature to that appellant is here being tried for, and appellant entered into a conspiracy, and it would be legitimate, on cross-examination of the prosecutrix, to ask her about said conduct, and, if she denied same, to prove the converse by any witnesses accessible, after laying the proper predicate. But, as suggested by the court, the mother of prosecutrix was not placed upon the stand. She was crazy at the time of the trial, and testimony that merely goes to impeach her or affect her sanity or credibility would not be germane testimony to affect prosecutrix, unless the connection is shown by the testimony of the prosecutrix with said conspiracy or insane delusions.

Bill of exceptions No. 2 complains of the following: At the commencement of the trial Mrs....