Castillo v. State

• Decision Date: 25 June 1892
• Citation: 19 S.W. 892
• Parties: CASTILLO v. STATE.
• Court: Texas Court of Appeals

19 S.W. 892

CASTILLO v. STATE.

Court of Appeals of Texas.

June 25, 1892.

Appeal from El Paso county court.

Rosalio Castillo was convicted of rape, and appeals. Affirmed.

H. H. Neill and H. H. Bendy, for appellant.

DAVIDSON, J.

Appellant was convicted of the crime of rape, and his punishment assessed at death. Three bills of exception were reserved to the ruling of the court in relation to the admission of testimony. By the first bill it is made to appear that the prosecutrix was permitted to testify "that she told her grandmother, Luz Juarez, when she got home, that a man who followed her, who had a scar on his face, took her, and pulled her in the bushes, near where there is a mesquite bush, close to Mr. Lyons' house, and did bad things to her, and hurt her." By the second bill it is disclosed that the same witness testified: "After I got home, Matias Villareal came to where I was at my grandmother's, and I told him that the man whom he saw following behind me with a tin bucket in his hand, and who had a scar on his face, was the man who took me and hurt me; and Matias told me that he knew him well." The third bill is reserved to the admission of the testimony of the witness Villareal, which was in substance the same as that stated in the second bill of exceptions. The statement to the grandmother was made in a very few minutes after the act was committed, and the statement to Villareal was made in about one half hour thereafter, and while the prosecutrix was lying on a bench, hurt and bleeding. In each instance it was objected that it was not competent for the state to prove anything the injured party stated except the fact that she made complaint of the outrage committed upon her, and that it was not proper to admit in evidence any statement she may have made as to who committed the offense, or the facts and particulars attending its commission, other than the fact that the complaint was made. The court, in signing the bills of exceptions, states "that the statements were so closely connected with the acts, both as to time and place, as to be part of the res gestæ," etc. The law is well settled in this state, where the injured female makes complaint of the fact that she has been ravished, that that fact can be proved. It is equally well settled that the particulars of her statement or complaint cannot be introduced by the state as original and independent testimony. Such evidence may, however, be introduced in rebuttal in support of her veracity, and for the purpose of establishing the accuracy of her testimony, when her credibility has been attacked by the defendant. Lawson v. State, 17 Tex. App. 292; Johnson v. State, 21 Tex. App. 368, 17 S. W. Rep. 252; Holst v. State, 23 Tex. App. 1, 3 S. W. Rep. 757; Pefferling v. State, 40 Tex. 486; Willson, Crim. St. § 915. In this connection it may also be stated that in cases of rape the identity of the accused cannot be proved by such statement of the prosecutrix, nor can it be by this means shown who committed the offense. Johnson v. State, 21 Tex. App. 368, 17 S. W. Rep. 252. But these rules are inapplicable when the details of such statement are sought to be proved as res gestæ of the transaction. In one instance the details of the complaint cannot be used except as corroborating testimony, while in the other it is res gestæ, and may be introduced as original and independent evidence. The question here presented is, was the evidence sought to be excluded properly admitted as res gestæ of the transaction to which it refers? The rule authorizing evidence of the detailed statement as res gestæ is not to be confounded with that which permits evidence that complaint was made, but rejects the details and particulars of such complaint. These rules are widely different, and the distinction is plainly observed and noticed in the authorities. When res gestæ it is original primary testimony, and can be introduced as such, but under the other rule it can only be used as sustaining or corroborative evidence. Speaking of this difference, Mr. Bishop says: "On ordinary grounds, anything which the woman said or did of the res gestæ of the ravishment will be admissible in evidence; and there is considerable room for strengthening her testimony in this way, especially where she exhibits marks of violence in connection with expressions indicative of her physical condition. But, aside from and beyond this, it is competent to show by her, or by others, or both, that, after the alleged rape, especially recently after, she complained of it to suitable persons, and exhibited, if such was the fact, marks of violence, and other like indications, as confirmatory of her sworn testimony. It is of special practical importance that the complaint was recent, and explanations of any delay are competent. * * * Neither the particulars of her complaint nor the name of the person whom she mentioned as the offender can by the English and more common American practice thus be given. * * * The effect of this evidence is mainly to sustain the witness; it is not independent proof. If, therefore, the injured female does not appear as a witness, this evidence cannot be given. But what is of the res gestæ, as stated in the opening of this section, is competent, whether she testified or not." 2 Bish. Crim. Proc. § 936, and notes. Also sections 625, 626, and notes. See, also, 1 Whart. Crim. Law, § 566. This distinction is expressly recognized by this court in Veal's Case, 8 Tex. App. 474.

In Regina v. Eyre it is said: "Whatever she [referring to the prosecutrix] said...