Buchanan v. State

• Decision Date: 21 June 1899
• Citation: 52 S.W. 769
• Parties: BUCHANAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 769

52 S.W. 769

BUCHANAN v. STATE.

Court of Criminal Appeals of Texas.

June 21, 1899.

Appeal from district court, Baylor county; S. I. Newton, Judge.

J. H. Buchanan was convicted of rape, and appeals. Affirmed.

D. A. Holman and W. A. Jones, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for life, and he appeals.

Appellant's first assignment of error complains of the refusal of the court to quash the indictment. The charging part of the indictment is that the defendant "did then and there ravish and have carnal knowledge of Emma Buchanan, a female under the age of fifteen years, not being the wife of the defendant." Appellant insists that the indictment should be quashed because the same is duplicitous. In Nicholas v. State, 23 Tex. App. 326, 5 S. W. 239, cited by appellant as authority on this proposition, the indictment read: "Did then and there unlawfully and feloniously in and upon one Leona Harris, a female person, and under the age of 10 years, make an assault violently and feloniously, and did then and there, by force and threats, against her will and without her consent, ravish, rape, and carnally know her, the said Leona Harris." The court in that case indicated that the indictment was probably duplicitous, but said that, in view of the fact that there was no motion made to quash the same, it would not be quashed on the ground after verdict. We do not think the indictment in the case before us is duplicitous. We hold that where the indictment uses the words "ravish" and "carnally know," in connection with the allegation of the age of the female as being under 15 years, there are two distinct and separate characters and kinds of rape alleged: that is, a rape upon a female under the age of 15 years with force, and a rape without force. We note that the indictment herein follows the forms prescribed in White and Willson. See Willson, Cr. Law, and White, Ann. Pen. Code, §§ 1101, 1102. We think the indictment is good.

Appellant's second assignment of error complains of the action of the court "in sustaining the state's general demurrer to and dismissing appellant's special plea to the jurisdiction of the court, and to setting aside the indictment, as shown by bill of exceptions number two." This bill complains of the action of the grand jury in receiving the testimony of Mrs. Mattie Buchanan, wife of defendant, before said grand jury, and that this fact renders the indictment defective. This is not a matter that can be inquired into, nor would the same render the indictment defective. Code Cr. Proc. art. 559; Terry v. State, 15 Tex. App. 66; Johnson v. State, 22 Tex. App. 222, 2 S. W. 609. We notice that the bill of exceptions is signed by the court with this explanation: "I sign the bill with this explanation: Upon the motion to quash the indictment on account of defendant's wife being in the grand jury when they were deliberating, two of the grand jurors swore that she was not in there when they were deliberating, but they only had her summoned before them, and she testified before the grand jury, and they adjourned over to the next day, until she and her two sons could come before them." The statute requires that no one shall be present, except the grand jurors, while they are deliberating as to the advisability of finding the bill. It does not appear that appellant's wife was present, according to this explanation, while such was being done. As stated above, the fact that the grand jury may have heard illegal testimony would not vitiate the indictment.

In the third assignment of error, appellant complains of the action of the court "in overruling defendant's objection, and admitting the testimony of Mrs. Mattie Buchanan, the wife of defendant, as shown by bill No. 3." It appears by said bill that, upon the trial of the case, "state's counsel, upon cross-examination, asked the witness Mrs. Mattie Buchanan, wife of defendant, the following questions, to which she gave the answers thereto, over the objections of defendant's counsel both to the questions and to any answer she might give: `Have you not taken great interest in behalf of your husband in this defense?' A. `I do not know that I have.' (2) `Is it not a fact that you have gone to the prosecutrix and told her not to know anything when put on the stand, and not to tell anything while on the stand, or swear anything, in the town of Seymour, on yesterday or the day before, or words to that effect?' A. `I have not.' (3) `Have you had any conversation with her?' A. `Yes; on yesterday, at the hotel, but said nothing like that.'" It appears from the foregoing questions and answers that the appellant's wife was not forced or permitted to answer anything against appellant. Furthermore, we think the questions were admissible on cross-examination.

Appellant's fourth assignment of error complains of the action of the court in refusing to exclude the testimony of J. B. Self and E. L. Craddock as to flight of defendant. These two witnesses testified to the fact that when they arrested appellant he attempted to flee, and did run some little distance, and was overtaken and recaptured. It is well settled by this court that flight, when an accusation is made against a party, is admissible, as touching the guilt of the party; and whether the technical offense is named by filing a prosecution or not is immaterial. In other words, because appellant was indicted for rape, and the affidavit had previously been filed against him for incest, and the flight was made during the pendency of the affidavit charging him with incest, and before indictment for rape, would not affect the admissibility of the evidence going to show the flight of appellant. Flight is admissible as a criminative fact on the ground of motive and intent, and to show appellant's guilty participancy in the offense. The technical name of that offense would certainly not affect the admissibility of the testimony. Wait v. State, 13 Tex. App. 169; Williams v. State, 22 Tex. App. 497, 4 S. W. 64.

Appellant's fifth assignment of error complains of the court's action in failing to exclude the testimony of Jack Bolt as to what Quitman Buchanan told him, as shown by bill No. 5. The court's explanation to this bill shows that the testimony was adduced from the witness by appellant's counsel, and was made in response to questions asked by appellant's counsel. It is well settled that appellant cannot offer testimony, although of the most damaging character, and then claim a reversal of the case because of its admission.

Appellant's sixth assignment of error complains of the action of the court in permitting R. H. Payne to testify to immaterial issues in defiance of the rule, as shown by bill No. 6. This bill discloses that the witness R. H. Payne was asked by appellant's counsel "if it was not a fact that there was a great prejudice against defendant in the community in which he lived, and shared in by himself, on account of his religious belief or profession, to which the witness answered, `I don't think they have any sympathy with him or respect for them.' `Do you know to what sect or church he belongs?' To which he answered, `I think he belongs to that ____ gang that was run out of Oklahoma for seducing women, and caused several men to be killed up there.' Thereupon the court instructed the jury to disregard that testimony, and admonished the witness to confine his answers to the questions of counsel, and to answer to what sect or creed he belonged, if he knew. And he answered, he did not know." While we think that the answer of the witness was not in response to appellant's question, yet we think the admonition of the court, and his insistence that the witness should confine his answers to the questions of counsel, removed all the error or prejudice to appellant's rights that might have occurred from the answer of the witness. "Counsel for the state then asked him the following question, and elicited the answer, over the objection of defendant's counsel, to wit: (1) `Did you ever know him to teach Free-Loveism?' `Yes, I have had religious discussions with him in which I thought he was for Free-Loveism.' (2) `Did you ever hear him profess to have power to heal sickness by laying on of hands or rubbing persons?' `Yes.' (3) `Did you ever hear him say that he had taught Emma how to cure persons in that way?' `Yes.' (4) `Did you ever hear him tell how Emma had cured him of some stomach or bowel trouble? If so, state how she did it.' `Yes; I heard him say that, when he was complaining of some bowel trouble, he had Emma to put both of her hands on his naked bowels and rub them clean down [emphasizing the last two words], and the pain disappeared.' To all of which defendant objected, because the witness, to testify at all, was in violation of the rule." Permitting a witness to testify who had not been under the rule is within the sound discretion of the court, and we do not believe that said discretion has been abused in this matter.

Appellant's seventh assignment of error complains of the action of court as shown by bill No. 7, as follows: "While defendant's counsel was cross-examining the state's witness Luther Buchanan as to the venue of the alleged offense, and said witness had testified that he did not believe that the defendant's camp was on the Tom Ates place, in Baylor county, one R. H. Payne, seated in the audience, not subpœnaed or put under the rule, and one of the parties who got out the complaint and had defendant arrested, spoke out in hearing of the...