Bybee v. State

• Citation: 168 S.W. 526
• Decision Date: 03 June 1914
• Docket Number: (No. 3135.)
• Parties: BYBEE v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

168 S.W. 526

BYBEE v. STATE.

(No. 3135.)

Court of Criminal Appeals of Texas.

June 3, 1914.

Appeal from McLennan County Court, Geo. N. Denton, Judge.

Pernie Bybee was convicted of soliciting and procuring a woman to have sexual intercourse with a male person, and he appeals. Affirmed.

Tirey & Tirey, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of soliciting and procuring Billie Golden, a woman, to go to a room in the Waverly Hotel Annex in Waco, for the purpose of meeting and having sexual intercourse with a male person, to wit, J. P. Brown.

It is unnecessary to detail the evidence, it being amply sufficient to show that appellant was guilty of the offense; and, unless there was some error committed in the trial of the case, it should be affirmed. There are a number of bills of exception in the record, and we will take them up and discuss them in their order.

It is first insisted that the court erred in sustaining the objection to the question, "You don't know of your own knowledge whether or not he [appellant] had anything to do with this woman, [Billie Golden] coming to your room," propounded to the witness J. P. Brown, the man whom appellant was charged with procuring the woman for. In the first place the bill does not show what answer the witness would have given, or was expected to give; therefore nothing is presented for review by this bill. McCray v. State, 38 Tex. Cr. R. 609, 44 S. W. 170; Lensing v. State, 45 S. W. 572; Monk v. State, 44 S. W. 1101; Kalsky v. State, 37 Tex. Cr. R. 247, 39 S. W. 362; Pitner v. State, 37 Tex. Cr. R. 268, 39 S. W. 662; Cooksie v. State, 26 Tex. App. 72, 9 S. W. 58. But if we go to the statement of facts, we find that the witness did answer this question on two or three different occasions before the objection was sustained.

Another bill complains that the court erred in permitting the witness to state what was done after Billie Golden came in his (Brown's) room. This was the best evidence of why she was solicited and procured to go to that room, and the testimony that she was induced to go there for the purpose of having sexual intercourse with Brown was the gist of this offense. But it was strenuously objected that if the testimony to show that she went there to have sexual intercourse with Brown, and that he paid her $2 for this privilege, it was inadmissible to prove that, while he was seeking to have sexual intercourse with her and was down on her, she abstracted $50 from his pockets, and if that was admissible, then certainly it is claimed that the fact that she gave appellant $10 of the stolen money was inadmissible, because it showed a different and distinct offense; it being contended this evidence did not show system nor intent in the commission of the offense. This may be conceded, but appellant overlooks another ground when such testimony becomes admissible, when it is a part of the same transaction and is res gestæ of the offense for which one is on trial. Thompson v. State, 11 Tex. App. 55; Wilkerson v. State, 31 Tex. Cr. R. 89, 19 S. W. 903; Menefee v. State, 50 Tex. Cr. R. 249, 97 S. W. 486; Campos v. State, 50 Tex. Cr. R. 290, 97 S. W. 100. Not only is this true, but, when Dr. Brown testified he asked appellant if he could get him a woman, and appellant told him he could, and that appellant later came to his room and told him that the woman would come up in a few moments, appellant, on cross-examination of this witness, showed that appellant was not in the room when the woman came in, and that he could not swear that the woman who came was sent by appellant, then the testimony of Billie Golden that appellant came after her, carried her to the hotel to the room in which his (appellant's) wife was staying, where she changed her clothing, and that appellant told her the number of the room to go to, and when she came out appellant met her and demanded a part of the money, and received it, was all admissible to show that appellant was the man who procured this woman to go to Brown's room. None of the exceptions to Brown's testimony present any error.

In three bills of exception it is shown that when Billie Golden was placed on the stand she refused to answer a number of questions, on the ground that her answer would tend to incriminate her. These exceptions are vigorously urged, but they pass out when it is shown that the woman afterwards took the stand, waived her privilege, and fully answered any and all...