Carter v. State

• Decision Date: 09 February 1910
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 215

CARTER v. STATE.

Court of Criminal Appeals of Texas.

February 9, 1910.

Rehearing Denied April 13, 1910.

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Appeal from District Court, Brown County; John W. Goodwin, Judge.

Reagan Carter was convicted of seduction, and he appeals. Affirmed.

Jenkins & McCartney, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was tried in the court below on a charge of seduction and found guilty and his penalty assessed at two years in the penitentiary; and he has appealed to this court, assigning various reasons why he claims this court should reverse and remand the case.

We find in the record a bill of exceptions which develops that the court permitted the state, over appellant's objection, to ask the prosecuting witness, Fannie Hawkins, the following question: "Would you have submitted to this man and permitted him to have had sexual intercourse with you, had it not been for his promise to marry you, previously made?" This question was objected to by appellant on the ground that the same was leading and suggestive. The objection was overruled, and the witness permitted to answer that she would not have permitted the intercourse had it not been for the previous promise of marriage. The bill is without qualification, and we have stated practically all that the bill contains. There being so many exceptions to the rule which forbids asking leading questions, before we would feel authorized to reverse because the court below permitted leading questions, we would have to be satisfied from the bill that the leading question did not fall within any of the exceptions that authorized leading questions. Questions that assume unproved facts are leading. However, it is not a prejudicial error to permit leading questions where they relate to acts not controverted, or where the point sought to be established is already proven and in these questions the fact established may be recapitulated. See Encyclopædia of Evidence, vol. 8, p. 153. Also leading questions may be put to hostile witnesses unwilling to give evidence. They are also permissible to refresh the memory of witnesses when the purpose of justice requires such a course to be taken. Also a leading question is permissible to arrive at facts when modesty or delicacy prevents a full answer to a general interrogatory. Also such questions are proper where the witness is confused or agitated. They are also permissible when they are asked of an ignorant person where he is slow to understand or his vocabulary is limited. They are also permissible to be put to children. They are also permissible and are not objectionable where the witness has given an ambiguous answer, and the party may inquire by leading questions as to any fact or circumstance tending to enable him to explain more clearly or certainly. Such questions are sometimes allowed for the purpose of bringing out details surrounding a main fact already testified to. See section 1105, White's Ann. Code Cr. Proc., and authorities there cited. Besides, this precise question was before us in the case of Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477, and it was there held that the prosecutrix could be asked: "Would you have yielded to the sexual embraces of defendant had it not been on account of his promise of marriage?" In view of the fact that discretion is left to the trial courts, in some cases, to permit the asking of leading questions, we think the proper rule of practice would be for the bill of exceptions, taken to the leading questions, to affirmatively show that the leading questions did not fall under one of the exceptions to the general rule. The bill in this case fails to state at what time of the proceedings this question was asked, under what circumstances it was asked, whether the witness' memory was bad or not, whether her recollection as to past events was treacherous, whether she gave her testimony in a halting manner, whether she was an unwilling witness, or whether the fact of her being a girl of 20 years of age and of modest demeanor caused her to be embarrassed upon the witness stand or not. Before we would be authorized to reverse a case upon this ground, the bill should affirmatively exclude any idea that, under the peculiar circumstances of the particular case, the court was justified in permitting the state to ask leading questions. Poyner v. State, 47 S. W. 977. The brief of appellant states that the testimony of the prosecutrix as to the appellant's alleged courtship, promise of marriage, and the facts and circumstances of their first intercourse, was vague, unreasonable and contradictory, and when we examine the statement of facts they appear, to some extent to be a little disconnected. We are inclined, therefore, to hold that the case cannot be reversed upon this ground.

The second bill of exceptions is to the action of the court in refusing to allow the witness Fannie Hawkins to answer the following question propounded by appellant: "Have you not stated here to the jury that the defendant said to you that you were as good as married when he had proposed intercourse on a former occasion, and that on this night, when the intercourse occurred, he said nothing about your being as good as married until after you got out of the buggy?" The state objected on the ground that the witness had been fully examined touching the matter inquired about and had already made full answer thereto. The court sustained the objection, and in his qualification to appellant's bill states: "This witness had been examined by both the state and defendant on this question, re-examined and examined by each again and again, and in the interest of time, and believing no good could come from rehashing it longer, the objection was sustained." There must be an end of examination somewhere, and, when the bill discloses that this matter had been gone over several times in the examination, we think that the court was authorized and justified in stopping the examination further along this line, and in this action of the court we find no error.

Bill of exceptions No. 3 is to the action of the court in refusing to allow the appellant to ask the state's witness Ben Griffin, who had been placed upon the stand and testified to the general reputation of Fannie Hawkins for virtue and chastity, if it was not a fact that in 1906 he (witness) was phoning to said Fannie Hawkins with reference to going to a party, and that his father objected to him going with the girl, and that he did not want him (witness) to go with her. This was objected to by the state and sustained by the court. We think the action of the court below was correct. General character may always be inquired into, but particular instances are never admissible.

Bill of exceptions No. 4 was to the action of the court in refusing to allow the appellant to ask the witness Roscoe Bellah if he (witness) did not state before the grand jury that Blake Jones led him to believe that he had had intercourse with Fannie Hawkins. This testimony was clearly inadmissible. The testimony failed to disclose that the appellant knew anything about it, and as to whether Blake Jones believed that she was of a loose character could throw no light upon any fact in the case. Blake Jones was a witness and testified in the case, and this testimony was not offered for the purpose of impeaching him, the witness Blake Jones, upon any issue. We think there was no error in the action of the court in this respect.

Bill of exceptions No. 5 was to the action of the court in refusing to allow appellant to testify that from a conversation he had with Mat Long, Pete Schulz, and Blake Jones, he inferred that they had been having intercourse with the girl. It will be noted that the bill of exceptions does not state that he was denied the right to prove what the language of these parties was to him with reference to the girl, but he is asked with reference to the inference or conclusion that he had drawn in his mind from what they had said as to whether they had had intercourse with her or not. This was clearly objectionable and not admissible.

Bill of exceptions No. 6 is to the action of the court in refusing to allow the appellant to testify to what passed between him and Allen Bledsoe when he sold the horse to Allen Bledsoe. In order that a clear conception of this matter may be had, we will set out the bill in full with the qualification of the judge, which is as follows: "The defendant, being upon the stand as a witness in his own behalf, proposed to prove by himself that at the time he sold his horse to Allen Bledsoe, which matter had already been testified to by him in reply to questions propounded by the state, and in said conversation he told said Bledsoe that he had no fears of prosecution in reference to the seduction of Fannie Hawkins, but that he was afraid of having trouble with her brother, Louis Hawkins, if he didn't get out of the country. To which question the state objected on the ground that it was a self-serving declaration. The court sustained said objection and would not allow the defendant to so testify. To which action of the court in not allowing the defendant to so state to the jury the defendant then and there excepted, and here now tenders this, his bill of exception No. 6, and asks that the same be signed and made a part of the record herein, which is accordingly done. Approved with this explanation: The defendant did testify along this line, and, if error was committed, we refer this court to the evidence in, for the purpose of determining whether or not the error, if any, was material. See evidence of defendant on redirect examination, page 67 and 68, and on recross, page 69."

It will be noted that appellant claims that he said to Bledsoe that he had no fears of prosecution in reference to the seduction of Fannie Hawkins, but that he was afraid of having trouble with her brother, Louis Hawkins,...