Carter v. State

• Decision Date: 03 December 1902
• Citation: 70 S.W. 971
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 971

CARTER v. STATE.

Court of Criminal Appeals of Texas.

December 3, 1902.

Appeal from district court, Hamilton county; W. J. Oxford, Judge.

J. W. Carter was convicted of attempted rape, and appeals. Reversed.

J. C. Main and Eidson & Eidson, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment charges and the conviction was obtained for an assault with intent to commit rape upon a girl under 15 years of age, and given 5 years in the penitentiary.

Appellant interposed what he terms two pleas,—one to the jurisdiction, and the other in abatement. They set up the same facts, the substance of which is that after the alleged occurrence the grand jury returned a bill of indictment charging appellant with an aggravated assault, which was properly certified to the county court. For about two years this indictment was pending in the county court, and the state kept the prosecuting witness from attending the court during that space of time, except at the first term after the transfer was made, and about two years subsequent to the return of the indictment for aggravated assault the grand jury returned the bill upon which this conviction is predicated. It is further stated in these pleas that appellant was ready and insisting upon a speedy trial of the case pending in the county court. Without entering into a discussion of the policy of this character of conduct, it is sufficient to state that it is well settled that the pendency of another indictment for the same offense, or for an offense growing out of the same acts, cannot be pleaded either in abatement or in bar of the indictment upon which the case was tried. Schindler v. State, 15 Tex. App. 394; and there are quite a number of cases in this state which follow the rule laid down in the Schindler case.

Mrs. Agnes Beasley, aunt of prosecutrix, testified that prosecutrix came out of the room in which the alleged assault was said to have been committed, crying, and started to tell witness what had occurred in the room, and witness would not let her do so. Witness further stated that she took prosecutrix downstairs, through the hallway, dining room, and kitchen to the outside of the house, without stopping on the way, and there was not exceeding five minutes from the time the child opened the door until she reached the outside of the house, where a conversation occurred. The district attorney then asked her to state what prosecutrix told her on the outside of the house. At this point appellant objected to the statement of the prosecutrix, on the ground that said statements would be inadmissible because they were hearsay, and not a part of the transaction, and in no way res gestæ. These were overruled, and the witness testified: "When we got outside I asked her [prosecutrix] what she was doing up there. She said that she did not unfasten her clothes; that the defendant put her hand on his privates. She said that she got off the bed, and he pulled her back. She said that the defendant got down and looked at her, and said she was most too small, but that he would try it any way. She said that defendant pulled one side of her drawers down." These matters are shown by the bill. In order to fully understand the exception, in this connection the evidence of the witness Beasley, as well as the prosecutrix, should be somewhat further taken into consideration. Mrs. Beasley testified that prosecutrix and appellant were in the room together; that Proctor, another witness in the case, had gone from the dining room, perhaps...