Campbell v. State

• Decision Date: 11 October 1911
• Citation: 141 S.W. 232
• Parties: CAMPBELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 232

141 S.W. 232

CAMPBELL v. STATE.

Court of Criminal Appeals of Texas.

October 11, 1911.

On Motion for Rehearing, November 15, 1911.

Rehearing Denied December 13, 1911.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Ruth Campbell was convicted of rape, and she appeals. Affirmed.

Evans & Carpenter, for appellant. C. E. Mead, Asst. Atty. Gen., Walter C. Woodward, Asst. Atty. Gen., C. A. Sweeton, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted in the district court of Hunt county under an indictment charging her with rape, and her punishment was assessed at five years confinement in the penitentiary.

This is a companion case to the case of Luther Hutcherson, recently affirmed by this court. 136 S. W. 53. Appellant in this case was convicted as a principal upon the theory that she aided, assisted, and encouraged in the perpetration of the crime charged. Appellant has reserved some 20 bills of exception, but, as she has presented all of her supposed errors in her assignments, we will consider them in the order in which they are there presented.

1. The first assignment complains of the refusal of the court at the request of counsel for defendant to order a venire of 100 instead of 50 men. As stated before, this is a companion case of the Luther Hutcherson Case. Luther Hutcherson was tried for the same offense on the 10th day of October, 1910, in Hunt county, and was convicted, and his punishment assessed at 20 years in the penitentiary. On the 10th day of October this case was set for trial on the 31st day of October, 1910. At the same time the court ordered a special venire to be drawn of 50 veniremen in this case which was to be returnable on October 28, 1910. At the time of the ordering of this venire, counsel for the defendant suggested that, as the Luther Hutcherson Case had just been tried and doubtless the facts proven upon the trial had been extensively circulated in Hunt county, that the court should order a venire of 100 men, instead of 50, in this case. The court refused to adopt the suggestion of appellant's counsel, and, as before stated, ordered a venire of 50 men only. Appellant's bill No. 1 shows that some time between the day upon which the trial was begun on October 31st and December 21st, at which time said bill was filed, appellant took exception to said action of the trial court. The statute provides that the court shall order a special venire for the trial of cases of the nature of this case, and places it within the discretion of the court as to the number of veniremen to be drawn. The court qualifies the bill of exception taken by the appellant by stating that in selecting the jury when this case was called for trial counsel for appellant procured 11 jurors out of the panel summoned, and that, therefore, he was not injured by the refusal of the court to have more than 50 men summoned on this venire. The court did not abuse his discretion in fixing the number of veniremen at 50.

2. The second assignment urges the insufficiency of the indictment, first, because the indictment shows on its face that the appellant is a woman, and, therefore, could not be guilty of rape; second, because it is not shown by said indictment that defendant had unlawful intercourse in giving such aid or encouragement as alleged therein. Article 75 of the Penal Code of 1895 provides: "When an offense is actually committed by one or more persons, but others are present and, knowing the unlawful intent, aid by acts or encourage by words or gestures, those actually engaged in the commission of the unlawful act, or who being actually present keep watch so as to prevent the interruption of those engaged in committing the offense, such person so aiding, encouraging or keeping watch, are principal offenders and may be prosecuted and convicted as such." The evidence for the state in this case shows that the appellant, Ruth Campbell, was very intimate with the said Luther Hutcherson, who actually committed rape upon one Arminta Scott; that she induced the said Arminta Scott, a female under 15 years of age, to accompany Luther Hutcherson and herself to the woods for the purpose of having Arminta Scott submit to carnal intercourse with the said Hutcherson; that she was present at the time said carnal intercourse was had by the said Hutcherson with the said Arminta Scott, and held her while the act was accomplished. Under these facts, she would be a principal, and could be convicted as such under the law. A woman may be guilty of rape as an abettor or principal. See State v. Jones, 83 N. C. 605, 35 Am. Rep. 586; 3 Chitty, Crim. Law, 811. See, also, 1 Hale, 629; 1 Harg. St. Trials, 388; State v. Dowell, 106 N. C. 722, 11 S. E. 525, 8 L. R. A. 297, 19 Am. St. Rep. 568; People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857.

3. The third assignment complains of the refusal of the court to permit Mrs. Walter Scott, mother of Arminta Scott, prosecutrix, to agree upon request of counsel for defendant to cause Arminta Scott to put on a certain coat suit said to have been worn by her on one occasion and appear before the jury trying this case, so that they might see her in a skirt longer than the one worn by her when she appeared as a witness in this case. Appellant insists that she expected to show to the jury by this method that the skirt to the coat suit was much longer than the skirt she wore when she testified in this case, and that, if dressed in longer skirts, she would appear to be 15 years of age. The fact that her general appearance might mislead one as to her age would be no defense to the offense, especially in this case, in which no one testifies that the girl is over 14 years of age, but it is proven beyond a reasonable doubt that she is under the age of consent, and the court did not err in that particular. If the record disclosed that diligence had been used to ascertain the age, and one had been misled, a different question might be presented. But in this case the evidence raises no such issue.

4. The fourth assignment presents the same matter as discussed under assignment No. 3, and presents no error.

5. The fifth assignment submits that the court erred in permitting the state on cross-examination of defendant to prove that Luther Hutcherson had intercourse with her after he had intercourse with Arminta Scott. The court qualified this bill as follows: "This act of intercourse occurred immediately after the act of intercourse with Arminta Scott, and this witness answered that Arminta Scott was within 15 or 20 feet of her and Hutcherson when this act of intercourse occurred." No reason is assigned in this bill why said testimony was objected to (McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941), nor is it pointed out how such testimony injured the rights of appellant. Appellant on direct examination at the instance of her counsel had testified that she had had several acts of intercourse with said Hutcherson, and, if the bill was in shape to be considered, it would not present error.

6. The sixth assignment complains of the admission in evidence of a letter set out in appellant's bill No. 8, in which the expression is used: "A— is all right, she is sticking like glue." The court in approving this bill says: "The proper predicate was laid before the introduction of this letter. The defendant testified that said letter was written by her to Hutcherson on the day following the alleged rape. She also testified that she referred to Arminta Scott when she used the expression: `A— is all right, she is sticking like glue.'" Under the evidence the letter was admissible.

7. Assignment No. 8 complains of the admission of so much of the confession of defendant as is set out in bills Nos. 10 and 11. Appellant shortly after her arrest made a written confession, and therein stated her connection with Hutcherson, and the incidents leading up to the alleged offense herein charged, and all the circumstances surrounding the parties at the time it is alleged Hutcherson committed the offense. There was no error in admitting this confession.

8. The ninth assignment complains of the exclusion of a letter written by defendant's mother, set out in defendant's bill No. 12. The letter did not remotely tend to prove or disprove...