Carter v. State

• Decision Date: 05 May 1920
• Docket Number: (No. 5814.)
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

221 S.W. 603

CARTER v. STATE.

(No. 5814.)

Court of Criminal Appeals of Texas.

May 5, 1920.

Appeal from District Court, Anderson County; John S. Prince, Judge.

John Carter was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

Seagler & Pickett, of Palestine, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction is for assault with intent to rape, and the punishment fixed at confinement in the penitentiary for five years.

May Ella Starkey, the prosecuting witness, testified that on the morning of the alleged offense, which occurred just before noon, she and her little cousin, Lou Etta Starkey, went from their home to the mail box some distance away to get the mail. They reached the box before the mail carrier had arrived, and while waiting for him the appellant drove up in his wagon. Appellant stopped, according to witness, got out of his wagon, and suggested that they play hide and go seek, to which the little girls agreed. Lou Etta Starkey, the cousin, was selected "counter"—that is, she was to count while the others hid, and then try to find them—and appellant and May Ella went to hide. Witness said that she first hid behind a bush; that appellant requested her to come hide behind an old crib, but she refused and hid in the stable near by; that appellant got in the stable with her, and while there "he pulled up my dress and run his hands all over my clothes." She further said, "He put his hand up the leg of my drawers," and "his hand touched my skin"; that he did not put his hands on her after that, and made no attempt to hold her, but that when she was leaving he said to come back, "that was the way Ruth Gibson did," but she did not know who Ruth Gibson was. In another place, witness testified that appellant did not put his hands on her; Lou Etta Starkey then came up looking for them, and appellant made both of them get in his wagon and drive with him towards his house; that just before reaching his house they saw the mail carrier coming, and jumped out of the wagon and ran to get the mail. After getting the mail, the two little girls went home, witness telling her cousin on the way home what had happened at the stable, and later told her mother.

Lou Etta Starkey, the cousin of prosecuting witness, testified to somewhat similar facts as May Ella; that they went to the mail box, and appellant came up while they were waiting for the mail and suggested a game of hide and go seek; that she counted while appellant and May Ella hid, and when they had hid she went to look for them. Just before she reached the stable where appellant and May Ella had been hiding, they came out of it, and appellant made her and her cousin get in his wagon and drive towards his home with him; that they saw the mail carrier coming before they arrived at appellant's home, and jumped out of the wagon and ran back to get the mail. They went from the mail box home, and saw no more of appellant.

Appellant, 19 years of age and married, gave testimony to the effect that he stayed at his father's house the night before the alleged offense, and drove over to his home, to which he had recently moved, the next morning. He passed the little girls at the Starkey mail box just before noon, and said that his mules shied at something in the road just as he was passing, but that he did not get out of the wagon, and did not say anything to the girls except "Howdy do." According to his testimony, he drove on to his home some 400 yards up the road, after passing the mail box. Appellant also testified to an altercation with the father of the prosecuting witness, had the same evening, in which the girl's father accused him of wrongful conduct towards his daughter and knocked appellant down.

J. A. Bean, the mail carrier, testifying for the appellant, said that he passed the Starkey mail box on the day of the occurrence, and saw the girls there; that approaching the mail box, and some 200 yards from it by the road, he traveled downhill and had an unobstructed view from the box to appellant's house, and that at no time while he was traversing the 200 yards to the mail box did he see the girls coming along the road from the direction of appellant's home. When he arrived nearer, the witness said, he saw the two little girls under a tree across the road from the mail box, about 4 feet from it. He gave them their mail, but noticed nothing unusual in their appearance; they were not...