Cloninger v. State

• Decision Date: 07 December 1921
• Docket Number: (No. 6461.)
• Citation: 237 S.W. 288
• Parties: CLONINGER v. STATE.
• Court: Texas Court of Criminal Appeals

237 S.W. 288

CLONINGER v. STATE.

(No. 6461.)

Court of Criminal Appeals of Texas.

December 7, 1921.

State's Rehearing Denied February 22, 1922.

Appeal from District Court, Denton County; C. R. Pearman, Judge.

Barney Cloninger was convicted of rape of a girl under the age of consent, and he appeals. Reversed and remanded.

Owsley & Owsley, of Denton, for appellant.

Sullivan, Speer & Minor, of Denton, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Denton county of rape of a female under the age of consent, and his punishment fixed at confinement in the penitentiary for a period of 5 years.

There was no merit in appellant's motion to quash the indictment. It was not necessary to state the age of the alleged injured female in the indictment with more certainty than that she was at the time under 18 years of age. In the instant case the alleged injured female was 15 years of age.

No error was committed in overruling appellant's motion for a continuance because of the absence of certain witnesses. Without going into the question at length, it is sufficient to say that the materiality of the alleged absent testimony does not sufficiently appear.

Appellant made a motion to quash the venire upon the ground that only 30 of the 60 veniremen were in attendance upon the court, and that only 8 of them had been excused by the attorneys, and that no excuse was shown for the nonattendance of the others. We find no bill of exceptions in the record to the overruling of this motion. There also appears the fact that when said motion was presented on March 26, 1921, the trial court postponed the hearing until March 28th, at which time the order overruling appellant's motion was entered, and we presume, in the absence of further complaint of appellant, that at said last-named date the absent veniremen were present, or their absence satisfactorily accounted for.

We do not think error appears in the refusal of the trial court to allow appellant to ask prosecutrix if on one occasion, when she and appellant, accompanied by another couple were out, if she did not know that the other couple had carnal knowledge of each other. Such testimony would not shed any legitimate light on the question of whether prosecutrix was of previous chaste character. Character cannot be affected by proof of the bad or good character of one's associates. Holsey v. State, 24 Tex. App. 35, 5 S. W. 523.

The court below committed no error in overruling appellant's objection to all evidence as to the age of prosecutrix. Such fact was material and not necessary to be more specifically alleged than that she was under eighteen years of age.

Appellant swore that prosecutrix told him that she was over eighteen years of age. She denied this and testified that she was only fifteen at the time of the alleged rape. In its rebuttal evidence the state was allowed to introduce an entrance card filled out and signed by prosecutrix when she entered the summer term of school on June 7, 1920, a short time prior to the alleged rape. This would seem admissible under the wellsettled rule that one whose statement about a matter while on the witness stand, is attacked by proof of contradictory statements, may be sustained by proof of prior similar statements. Branch's Ann. P. C. p. 110, for collation of authorities. The card so objected to showed that prosecutrix had thereon stated her age on June 7, 1920, as being fifteen.

While W. A. Martin was on the witness stand he was asked the following question, referring to prosecutrix: "Do you know her general reputation among the people who she associated with, their character?" The state's objection to said question was sustained. This was proper. The question was clearly too indefinite and was directed at no particular kind or character of reputation. In Norman v. State 89 Tex. Cr. R. 330, 230 S. W. 991, we held that unchaste character was provable in a case like this, only by evidence of specific acts.

The state introduced a letter written by appellant to prosecutrix. Claiming that the state was in possession of other letters written by him to the young woman, appellant sought to compel the state to produce them for his inspection. The letters had been brought to court in response to a subpœna duces tecum. They should have been produced. They were not properly turned over to the state's attorney. We know of no rule which would have justified the trial court in refusing this demand, and its refusal was error. If upon inspection there were found in said letters matters upon the same subject as the one introduced by the state, it would have been admissible under article 811, Vernon's C. C. P.

The trial court told the jury that if they found from the evidence that at the time of the alleged rape, prosecutrix was not of previous chaste character they should acquit. The court then proceeded to give to the jury a definition of what is meant by "previous chaste character," which is as follows:

"By the term `previous chaste character' referring to the prosecutrix in this case, is meant, that character of a woman who possesses actual virtue, and you are instructed that a woman possesses actual virtue until she has had sexual intercourse by her own consent with a man not her husband, and in this case if you find and believe from the evidence that Euleta Croft had had sexual intercourse by her own consent with any other man or men previous to the time she had sexual intercourse with the defendant, you will acquit the defendant and say by your verdict not guilty."

By bill of exceptions duly approved by the court it is shown that appellant excepted to such definition and its application as improper under the facts of this case, in that it appeared from the evidence that at a prior time and place to that submitted in the charge to the jury appellant and prosecutrix had had intercourse with each other; that appellant asked a special charge defining unchaste character, which required the jury to believe that the female possessed actual virtue at the time of the act with the accused charged herein, which was refused. Referring to the facts in the instant case, it appeared from the testimony of prosecutrix herself that her first act of intercourse with appellant was at his garage in the town of Denton. She further testified that on another occasion later they had intercourse in a pasture west of said town. In his charge to the jury the court restricted their consideration of defendant's guilt to the act in the pasture. Was prosecutrix a chaste woman at the time of this act in said pasture? She was not, if her own evidence be believed. Would her prior act or acts of intercourse with appellant render her unchaste within the meaning of the law now under consideration? This question has not been decided in this state, but in State v. Dacke, 59 Wash. 238, 109 Pac. 1050, 30 L. R. A. (N. S.) 173, this question was the point at issue and was decided adversely to the state by the Supreme Court of Washington. Bailey v. State, 57 Neb. 706, 78 N. W. 284, 73 Am. St. Rep. 540, was therein cited as directly in point and many other authorities as analogous. From the opinion in the Dacke Case we quote:

"The term `of previously chaste character' means the same in law as in morals. It describes a condition of sexual purity. It means a female who has never submitted herself to the sexual embrace of man, and who still retains her virginal chastity. It is defined as `chaste in fact when seduced,' in Hussey v. State, 86 Ala. 34, 5 So. 484; as `actual personal virtue,' in State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374; Lyons v. State, 52 Ind. 426, 1 Am. Crim. Rep. 28; Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177. `A chaste female is one that has never had sexual intercourse, who yet retains her virginity. A virtuous female is one who has not had sexual intercourse unlawfully, out of wedlock, knowingly and voluntarily.' Marshall v. Territory, 2 Okl. Crim. Rep. 136, 101 Pac. 139. Whatever may be the language which one may choose to define a female of previously chaste character, it certainly cannot be contended that one who, moved by lewd desire and libidinous impulse, submits herself to the carnal embrace of a man from November to July whenever the time and place are opportune, is a female of such a character on the 30th day of June.

"It is argued by the state that, as to the appellant, the prosecutrix is exempt from this requirement of the law; that, being the author of her undoing, he cannot take advantage of his own wrong and hide himself under the cloak of this statutory requirement, as a shield for his protection. Such an argument is purely a sentimental one, and, although it may be abhorrent to the moral sense to permit a man to protect himself with the shield of his own wrong, we are dealing with a legal question, and not one of sentiment nor morals; and, in order to find a man guilty of such an offense as the one named in this...