Blumenthal v. State

• Decision Date: 07 January 1925
• Docket Number: (No. 8306.)
• Citation: 267 S.W. 727
• Parties: BLUMENTHAL v. STATE.
• Court: Texas Court of Criminal Appeals

267 S.W. 727

BLUMENTHAL v. STATE.

(No. 8306.)

Court of Criminal Appeals of Texas.

January 7, 1925.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Ed Blumenthal was convicted of rape, and appeals. Reversed and remanded.

Cunningham & Oliver, of Abilene, A. A. Clarke, of Albany, Cearley & Pearce, of Cisco, and W. L. Crawford, of Dallas, for appellant.

M. S. Long, Dist. Atty., Stinson, Coombes & Brooks, all of Abilene, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 15 years.

According to the state's theory Exa Burch, a girl under 15 years of age, while in a picture show in the town of Cisco, met the appellant, and by arrangement the two went on the railroad train to Baird, the county seat of the adjoining county. Together they went to a hotel, the girl registered, and the two went to the same room. The lady in charge of the hotel admonished them that they could not occupy the same room, whereupon the girl, upon the suggestion of the appellant, went to another hotel, where she registered and was assigned a room. A short time later the appellant appeared at the hotel last mentioned, entered the room assigned to the girl, and stayed a short time, during which he had carnal intercourse with her. She was, upon the same day, taken in charge by the sheriff, and admitted to him that the appellant had had carnal knowledge of her. She later reiterated that statement to the grand jury and upon the present trial. There was corroborative evidence to the point that the appellant and the prosecutrix were together at the places named by her.

A physical examination was made by a doctor which revealed that the hymen was gone and the lips of the vagina discolored and swollen; that the vagina for a girl of her supposed age was uncommonly large and abnormally developed. Whether this "overdevelopment," as the doctor expressed it, was due to frequent sexual intercourse the doctor declined to express an opinion, but said that such might be the cause of it.

Upon the calling of the case for trial the state's attorney declined to announce ready, and, after a private conversation with the presiding judge, the special veniremen were directed to retire from the courtroom and remain until called. The prosecutrix, Exa Burch, was then sworn as though a witness and interrogated at length. It took the nature of a rigid cross-examination by the presiding judge, and resulted in the repeated denial by the prosecutrix of the truth of her former statements to the effect that the appellant had had carnal knowledge of her and the insistence by her that he had had no such relation. She also declared that she was above 15 years of age; that the apparent statements in the Bible to the contrary were inaccurate in that erasures had been made in order that the age of her brother, who was subject to draft in the army, might not be revealed. She explained that her statements to the sheriff were coerced by the threat to place her in jail, and that under the same influence she reiterated the statement to the grand jury. In the examination mentioned she told the presiding judge that soon after her release from custody she had told her two brothers and her father that the appellant had had no improper relations with her, and stated in reply to inquiries that her father had told her to tell the truth, and for that reason she was, on the present occasion, refusing to inculpate the appellant. The examination is too long to permit its reproduction in full. Among the questions asked by the court and the answers of the girl are the following:

"Q. You remember you were down there in the jail, and you remember having a conversation with Judge Crawford, the tall gentleman, and Benny Russell and myself? A. Yes, sir; I remember it.

"Q. Do you remember Judge Crawford stating, `Now Exa, I am going to ask you something delicate, and I want you to tell me the truth, and that if you told a story you might send a man to the penitentiary,' and that he wanted nothing but the truth, `just like God was looking down into your heart, and somebody's liberty was depending on what you said,' and he said he wanted you to tell the truth and he asked you if this man over here did anything wrong to you; you remember him asking you that? A. Yes, sir.

"Q. Do you remember what you told him? A. I told him — yes, sir.

"Q. Was that true? A. No, sir; that was not true.

"Q. If it was not true, why did you tell facts — I just want you to be frank with me, Exa, I do want you to tell the truth.

"Q. You were before the grand jury; did you tell them he did anything wrong to you; the grand jury, the twelve men in the room where the district attorney was, Mr. Long and Benny Russell were present; did you tell them the same thing that you told Judge Crawford? A. Yes, sir.

"Q. That was a short time after you were with him in your room at the hotel. Is what you told the grand jury true or false? A. No, sir; it was not true.

"Q. Why did you tell the grand jury a false-hood? A. Mr. Bray made me tell it.

"Q. You told Judge Crawford that this man over there did something wrong to you, and now you say that you were not telling the truth; that that was not the truth. Why did you tell Judge Crawford something that was not true? Why did you tell Judge Crawford? (No answer.)

"Q. Did Mr. Bray make you tell that? A. Mr. Bray made me tell it all; all of it at first, and so I told every one of them the same thing.

"Q. What did Mr. Bray tell you; just tell me what he did tell you. I want to know just what the sheriff did. Mr. Bray is the sheriff at Baird, isn't he? He is the acting sheriff down there. How did he make you tell what you told? A. He was going to put me in jail if I did not tell them. He said he knowed that man did do something to me, and there was none of it so.

"Q. Did you ever tell this man over here; this man, Mr. Pearce (attorney for appellant), that he didn't do anything to you? A. Yes, sir; I told him.

"Q. You have talked to him several times. Tell me what conversation you have had with Mr. Pearce. (No answer.)

"Q. Why do you look at him every time I ask you anything? What conversations have you had with him? Tell me what you talked to him about. (No answer.)

"Q. Has anybody told you to tell that that was false; that you had been telling at Baird; has anybody told you to change your story about this matter? A. No, sir.

"Q. Why did you tell Benny Russell (county attorney) you were 13? Why did you tell him you were 13? Can you tell me why? You do not know why you told Benny this man mistreated you, don't you? A. Yes, sir.

"Q. Why did you tell Benny that? Why did you tell him that? A. Because Mr. Bray said he wanted me to tell them all the same thing. That's the reason I told him.

"Q. Don't you know that Mr. Bray did not make you do anything of the kind? Don't you know he did not make you tell that story? A. Yes, sir; Mr. Bray did. He just wanted to send that Jew to the penitentiary for nothing. He just wanted me to tell a whole pack of lies.

"Q. Don't you know that Mr. Bray is inexperienced as an officer, and that he is high class gentleman, and that he did not do anything of the kind, and that he would not purposely do anybody an injustice? Don't you know he is a man that bears that kind of a reputation? A. He may be, but he said that."

At this juncture, under instruction from the court, the sheriff took the girl into a room in the courthouse. The father of the prosecutrix was present as a witness for the defendant. An oath was administered to him, and he was interrogated by the judge with reference to the age of his daughter and the alleged erasures in the Bible. Upon his failing to disclose facts contradictory of the statements of his daughter the father was sent to jail, where he was kept until after the close of the trial. Subsequently Exa Burch was again brought before the presiding judge, and counsel for the appellant was permitted to ask her questions, whereupon she identified the written affidavit made by her in the city of Dallas, witnessed by her father and stepmother and verified by the notary who took her affidavit, in which written statement she declared that the appellant had not had carnal knowledge of her, and that her statements to the contrary were untrue. In the course of this examination she was asked by the appellant's counsel the following questions and made the following answers:

"Q. Now, little girl, you are under oath and under the protection of the court here. Did the defendant, Ed Blumenthal, have sexual intercourse with you?

"The Court: Think about that question. You have been under oath before.

"Q. (by counsel for defendant): Did the defendant, Ed Blumenthal, have intercourse with you at Baird? A. No, sir.

"Q. Did he try to have intercourse with you? A. No, sir; he did not.

"Q. Did he at any time ever have intercourse with you? A. No, sir."

Immediately thereafter she was, under the direction of the presiding judge, sent back into the anteroom in the courthouse, and in the absence of the appellant interviewed by counsel for the state and the district judge, and told by them that she should tell the truth. After the interview she was taken to the jail. While there she was permitted to see her father, who was also in jail. Subsequent to these proceedings the state announced ready for trial and placed the prosecutrix upon the witness stand. She testified that the appellant did have intercourse with her upon the occasion in question, and that her age was then 13 years. She appeared angry, and asked the appellant's counsel why her father was in jail.

In her cross-examination upon the trial all of the previous contradictory transactions of which notice has been here taken and her various conflicting statements were made known to the jury by her admissions and otherwise....