Calyon v. State

• Decision Date: 27 January 1915
• Docket Number: (No. 3392.)
• Citation: 174 S.W. 591
• Parties: CALYON v. STATE.
• Court: Texas Court of Criminal Appeals

174 S.W. 591

CALYON v. STATE.

(No. 3392.)

Court of Criminal Appeals of Texas.

January 27, 1915.

Dissenting Opinion, February 15, 1915.

Additional Opinion, March 10, 1915.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Harry Calyon was convicted of crime, and he appeals. Affirmed.

King & Hughes and R. L. Pillow, Jr., all of Galveston, for appellant. Chas. H. Theobald, Co. Atty., and M. J. Levy, and W. E. Cranford, Assts. Co. Atty., all of Galveston, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of an assault with intent to rape Leta Tinnin on July 4, 1914, and his punishment assessed at four years in the penitentiary.

1. Appellant vigorously contends that the evidence was insufficient to sustain the conviction. It is therefore proper to state some of the testimony tending to sustain the conviction. What this court said in Kearse v. State, 151 S. W. 828, is applicable to this case. It was there said:

"There is hardly any contested case that comes to this court but what there are contradictions in the testimony, and frequently a principal witness may contradict himself in material matters. In such cases, when it is contended that the evidence is insufficient to sustain the verdict, this court cannot legally take the place of the jury, and determine whether or not it will believe any witness or witnesses, and from all of the testimony, as put down on paper and sent to this court, it would have found a different verdict from that of the jury and, if so, reverse the case on that account. The only question this court can determine is whether there is sufficient evidence, if believed by the jury, to sustain the conviction. This court passes upon that question as a question of law, which is all it can legally do under such circumstances. Our law expressly provides that the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony. This court, therefore, cannot take that question from the jury without usurping authority that was never given or intended to be given to it. The jury in a felony case is made up of 12 fair, disinterested, impartial, unprejudiced, unbiased, and competent jurors selected from different portions of the county, each one of whom hears all the witnesses, looks them in the face when testifying, observes their manner and the method of their examination by the respective attorneys, then hears the argument of the attorneys for each side, one side undertaking to break down the testimony of the witness and calling attention to every contradiction * * * by others of him, the other explaining such matters, and seeking to sustain such witness, then hear and take with them in their retirement the charge of the court. Then the 12 men discuss and consider in private between themselves all such matters, and, after weighing it all and all the arguments against it and in support of it, come to the conclusion that the testimony of a certain witness, or witnesses, although contradicted and although there are contradictions in the testimony of such witness, that it is true and they believe it. The jury is made up of men of different ages, from young to comparatively old men, and they pursue different occupations and businesses. With all these surroundings they are much more competent to arrive at the truth than are the judges of this court, who must look solely to the testimony as written down on paper. It cannot portray the manner, the looks, and the deportment of the witness, nor the manner of his examination and cross-examination by the attorneys. Besides this, the presiding judge hears and sees and observes all that the jury does in the trial of the case, and he then sustains the verdict of the jury. Therefore, when the evidence taken in its favorable light sustains the verdict, this court cannot legally set it aside."

The statement of facts contains 54 typewritten pages. We have read it more than once, and carefully studied it. The testimony establishes some of the facts without controversy. We will here state some of these.

Leta Tinnin, the alleged assaulted girl, was just past 15 years of age. She lived with her parents in Alvin. She had never kept company with any boys prior to this, and her parents would not permit her to accept company or go out alone. Most all of the witnesses, in speaking of her, designated her as a little girl. The appellant seems to have been a grown man, though his age is not stated. The little girl, Leta, had never seen him before the day of the alleged assault, and he was not introduced to her on that occasion. On said date there was a political picnic in Galveston county, on the mainland, some 12 miles from Alvin. On the morning of that day said little girl, together with a young daughter of Mr. Romine, the constable, with John Sue, in a buggy, went to said picnic. There was a large crowd of men, women, and children at the picnic. They had various classes of amusements on the picnic grounds that day. The extent of the picnic grounds is not given, though there are some indications that it was on about 100-acre tract of land and at a creek. At one locality the soldiers were racing their horses and jumping them. More or less crowd was watching that amusement. At another location they had political speakers, and more or less people were giving their attention to that. At another place they had a dance stand, and a dance was going on. A considerable number were giving their attention to that amusement. And at another locality was a baseball game, which, it seems, always attracts more or less attendants. There may have been other attractions also on the ground. Up and down the creek there was more or less timber and some undergrowth and brush. This extended from the creek to some 75 yards from it. The creek had a kind of double, or treble, bank or benches to it, a bank running up from the water a few feet high and extending back perhaps some 8 or 10 feet, then another bank or rise several feet high and extending to another bench; then, it seems, still another to reach the apparently level ground. Along about 4 or 5 o'clock in the evening the little girl Leta, her companion Drewie Romine, the 14 year old daughter of the constable and an associate and companion of Leta, and perhaps her little sister were at the dance pavilion watching the dance, when appellant approached her. We now give some of her (Leta's) testimony. She said:

"He walked up to me and asked me to dance with him. I told him I couldn't dance. He says, `Will you go in bathing with me.' I says: `There are no girls in bathing; I am not going in when there are no other girls in.' He says, `There are, too, and come with me and I will show you.' I sort of did not want to go at first, and then I says, `I will go with you, but I know they are not there.' The girls were not in bathing. We walked down that way a little ways, and he says, `Stop,' and I stopped, and he put his arms around me, and says, `You are the sweetest girl I ever saw,' and tried to get me to kiss him. I would not do it. I started to cry, and I told him to turn me loose, and he says he would not do it until I kissed him. He tripped me, and then I fell, and he kept trying to get me to kiss him. I would not do it. I said: `You let me up; I got to go.' And he says, `You kiss me.' I says, `I am not going to do it.' I started calling for help and nobody didn't come to me, and he kept trying to get me to kiss him, and I wouldn't do it. He told me to take hold of his root. At that time, when he told me to do that, he had his hand over my mouth, and his mouth over my mouth part of the time, and told me to hush, and I would holler, and he would keep trying to get me to, and I wouldn't do it. He says, `Take hold of my root,' and tried to feel my breast. I don't remember the exact words he said then, if anything was said. He tried to get me to let him feel of my breast, and I told him to quit. At that time, when he asked me that, I was on the ground; he had tripped me. We was both on the ground. He was on the ground. I was trying to get on my side as near as I could, and he would get right on top of me. He would get right on top of me. At that time I did see a portion of his private person. He just stuck his hand down under me and commenced undoing his pants. At that time he was lying down. After he said to do this and when he exposed his person, as I testified, well, he was trying to get me to — tried to put his hand over my mouth, and he was putting his mouth in mine, and I would bit him, and one time he put his mouth in mine, and I just reached up and pulled his hair, and I just lay over on the ground; and act sort of like he was crazy, and he was not. He would try to get me to hush hollering. He told me to hush, and I said I would not, and I said, `Let me up.' I said, `Let me up or I will holler.' He says, `If you holler and tell on me, I will kill you.' When I fell on the ground and went down on the ground and he tripped me, the condition of my clothes as to whether or not they were down on my body, they were down. He pulled my dress up as far as he could get it, and had his hand that way. He put his hand under my slips. My slips, that was the last underclothing next to my skin. I was trying to get some one to come after me; I hollered `Help!' I hollered it loud. I hollered for help all the time. Well, after that, one time I started to get up and he says, `Don't you run,' and grabbed me right here at my dress, and I stopped to pick up my umbrella, and he took hold of me again. At first they heard me, and Drewie walked down that way by herself; then she turned around and went back and told my little sister; that is Drewie Romine. There was some one else there. My little sister came there. Next after my sister came, well, Mrs. — I don't know, I can't call her name — Mrs. Kavelder, the name you just called; she was in the buggy, she came...