Burge v. State

• Decision Date: 15 April 1914
• Docket Number: (No. 3062.)
• Citation: 167 S.W. 63
• Parties: BURGE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 63

167 S.W. 63

BURGE v. STATE.

(No. 3062.)

Court of Criminal Appeals of Texas.

April 15, 1914.

On Motion for Rehearing, May 13, 1914.

Appeal from District Court, Collin County; F. E. Wilcox, Special Judge.

Ed Burge was convicted of rape, and he appeals. Affirmed.

G. R. Smith and W. R. Abernathy, both of McKinney, for appellant. L. J. Truett, Co. Atty., and Sam Nethery, Asst. Co. Atty., both of McKinney, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of rape by force, and his punishment assessed at seven years' confinement in the state penitentiary.

The record is rather voluminous, and, in passing on the questions presented, we will take them up in the order discussed in appellant's brief and in their able oral argument before this court. He first discusses at length the improbability of the testimony for the state being true, and, while admitting that Mrs. Vaden testifies to facts which show that she was raped by appellant, yet it is insisted that the offense could not have been committed in the way testified to by her. Enough of the testimony will hereinafter be stated to show, we think, this contention ought not be sustained by us.

The next contention is: "When the state has introduced a witness, who is a material witness for the state, and who testifies to material and prejudicial facts against the defendant, such defendant, on cross-examination, has the right to show any fact or circumstance which will affect the credit of the witness before the jury." This is a sound proposition of law, and, if the court had excluded any such testimony, it would be error. J. M. Matthews was a most material witness for the state, and testified, among other things, to appellant paying or causing to be paid to the husband of Mrs. Vaden $750 to keep her from attending court and testifying against him; the court permitted it to be shown that the husband of Mrs. Vaden gave him (Matthews) one-fourth of this amount. Appellant then developed that, in addition to having this prosecution brought, Mrs. Vaden had filed a suit against appellant for $50,000 damages. In cross-examination of Matthews, appellant asked him if he (Matthews) was going to get one-fourth or a child's part of the amount sued for and recovered as damages, to which question Matthews answered "No." Appellant then asked him if he did not think he was entitled to it. Whatever may have been the witness' opinion as to what he thought he ought to be entitled to would be inadmissible, when he answered he was not going to get any part of it. Matthews was in no way related to Mrs. Vaden, and as a matter of law was not entitled and could recover no part of any sum that Mrs. Vaden might get, if anything; and, as he had testified that there was no agreement or understanding that he was to be given any part of it, his opinion about what Mrs. Vaden ought to do in case she recovered would not be legitimate testimony.

Dr. T. W. Wiley, after qualifying as an expert, in answer to a hypothetical question had testified that a woman in the position stated, and under the circumstances enumerated, could not be raped without leaving evidence of physical violence on her person, and he was then asked if a man could have carnal intercourse with a woman in that position with her consent, and it is shown by the bill that he would have answered that he could not. In this case there was no question of intercourse by consent. Mrs. Vaden testified to a case of rape; appellant testified that he at this time nor at any other time had never had intercourse with Mrs. Vaden, and there were no facts and circumstances showing that he had intercourse with her, unless the version of Mrs. Vaden be accepted as true; and, the doctor having testified that in his opinion the act could not have taken place without leaving marks of physical violence (there being no marks of violence on Mrs. Vaden), the court did not err in his ruling. The record discloses that the doctor testified: "In my opinion, a woman raped under those circumstances, without marks of physical violence upon her person, would have to consent. In my judgment she could not be raped without marks of physical violence upon her."

In the fourth and fifth assignments in the brief are presented the questions that the jury received other and additional testimony after they retired, and discussed the former conviction of appellant. When the motion for a new trial was heard, each juryman was called and testified, and each and all virtually agree that nothing of this character took place until after the vote had been taken in which they all agreed upon appellant's guilt. Some of the jurymen testify that, before they had agreed on the term of punishment to be assessed, one of the jurymen, a Mr. Crockett, remarked that he was surprised that appellant took him on the jury; that appellant was aware that he (the juryman) knew that he (appellant) had separated a man and his wife prior to this time. Some of the jurymen say that this was before the verdict was finally arrived at; some say that it was after the verdict was reached, but before it was returned into court; and some say that it was after the verdict was rendered and the jury discharged, and that the remark was made by Mr. Crockett while they were on the way downstairs; but each and all of them testify it had no influence on any of them. Appellant does not contest the fact that he knew Mr. Crockett was aware of the circumstance mentioned, prior to the time he accepted him on the jury. Each juryman was called on to testify as to what was said about the prior verdict. One of the jurymen testified that some one remarked about appellant having been formerly convicted and had been sentenced to ten years in the penitentiary (that is, asked if this was not the case in which he had been formerly convicted), when the foreman promptly instructed them that this could not be considered, and they must not discuss it. A majority of the jury testify they heard no such remark, and all of them say that it was not discussed, and no attention was paid to the matter. While several testify that before going on the jury they knew appellant was convicted on the former trial, they state that on their examination, when asked, they so informed appellant's counsel. The record discloses that on the former trial appellant received a sentence of ten years, while on this trial he gets only seven. It may be said that the evidence of all the jurymen discloses there was no discussion of the former conviction, although it may have been incidentally mentioned by one juryman, who was at once informed that this matter must not be discussed nor considered, and they all say it was not discussed nor considered. If it had been discussed, of course we would not be inclined to inquire into whether it had weight or not; but inasmuch as all say it was not discussed by any of them, but at most only incidently mentioned in the nature of a query, this presents no error.

As to the remark of Mr. Crockett, it is practically certain that it was made after the jury had all agreed on the guilt of defendant, if in fact it was not made after the jury was discharged, as contended by Mr. Crockett and some others. When they began a discussion of the penalty, four were for 5 years', while the remaining eight were for various numbers of years up to 20 years', confinement in the penitentiary; and, instead of it appearing that the four were caused (if the remark was made prior to the time the punishment was agreed on) to increase the number of years from what they first thought proper very much, those for a greater number of years afterwards came down considerably more than they were led to increase the punishment. In the case of Arnwine v. State, 54 Tex. Cr. R. 219, 114 S. W. 796, the matters were carried much further than in this case, and it was held not to present reversible error. The mention of these matters in this case did not induce them to find appellant guilty, for they had already done so before these facts were mentioned, as shown by the testimony. The mention of the number of years given appellant did not influence them apparently, for they proceeded to give him less than on the former trial, and they nearly all swear they did not hear the query when made about the former conviction, and those who say they did hear it say it did not influence them and was not considered by any one in arriving at the number of years of punishment; and a majority of the jury say the remark of Mr. Crockett was made after the verdict was reached, and all say it was not discussed, and all say it did not influence them in the least, and the punishment bears evidence of this fact.

The propositions presented by the sixth, seventh, eighth, ninth, and tenth assignments of error present to us a serious question, and one to which we have given much thought and study. In the case of Pefferling v. State, 40 Tex. 487, it was held: "In prosecutions of this character, the proof of the offense depends very frequently upon the testimony of the party charged to have been outraged, and in most cases, to a very great extent, upon the truth and credibility of her evidence, and unquestionably every reasonable test should be applied to her integrity, for the safety of the accused. Hence the failure to make outcry, or call for aid when it might have been readily obtained, or within reasonable time to discover the offense after an opportunity to do so are circumstances tending to discredit her testimony. But, if the absence of these circumstances tend to raise the presumption that her testimony is false or feigned, proof of them repels the suspicion which their absence raises. It has therefore been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence." The rule...