Conger v. State

• Decision Date: 18 October 1911
• Citation: 140 S.W. 1112
• Parties: CONGER v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W. 1112

CONGER v. STATE.

Court of Criminal Appeals of Texas.

October 18, 1911.

Rehearing Denied November 15, 1911.

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Appeal from District Court, Wood County; R. W. Simpson, Judge.

Tom Conger was convicted of assault with intent to commit rape, and he appeals. Affirmed.

Harris & Suiter and Jones, Cathey & Jones, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

In April, 1910, the grand jury of Wood county indicted the appellant for an assault with intent to commit rape upon Naoma Dickey by force, alleged to have occurred on January 30, 1910. He was tried at the April term, 1910, of the said court, found guilty, and his punishment assessed at three years in the penitentiary.

The state has made a motion for this court to strike out and not consider the statement of facts in the record because it has been copied in the record and the original not sent up as a separate paper, claiming that, under the stenographer's act of 1909 (page 374), such statement so copied in the record, the original not being sent up, is not a legal statement of the facts, and cannot be considered. That act of the Legislature authorized, but did not require, the judge of the district court of Wood county to appoint a court stenographer. It does not appear to us anywhere in the record whether the court appointed a stenographer or not. The statement of facts copied in the record does not purport to have been made by a stenographer, but appears to have been prepared by appellant's attorneys and the district attorney and approved by the judge. That act of the Legislature expressly provided that it should not be construed so as to prevent parties from preparing statements of facts on appeal independent of the transcript of the notes of the official shorthand reporter, even when one had been appointed by the court. The act further requires in the event the court stenographer made out the statement of facts that he should do so in duplicate and certify thereto; that both the original and duplicate should be filed in the court below, the duplicate preserved there, and the original sent to this court in case of an appeal. There does not appear to have been made a duplicate of the statement of facts in this case, but what is in the record purports to be a certified copy of the original made by the clerk as a part of the record in this case. We take it that a proper construction of the said stenographer's act, in connection with the facts we have given above, would authorize, if it did not require, statements of facts made out as this was, to be copied as was the practice and law before this act was passed.

In addition to this and in resistance to the state's said motion to strike out as shown to us by the certificate of the district judge, and the sworn affidavit of one of appellant's attorneys that at the time this statement of facts was presented to the judge for his approval the Hon. J. A. Mobley, then the Assistant Attorney General of Texas, and assigned to this court, was present, and was asked by the judge if this statement of facts should be copied by the clerk and sent up as a part of the record, or the original sent, and Mr. Mobley replied that it would be proper to copy it, and that for the state he would make no question about it, and that it would be all right. The judge thereupon ordered and directed the clerk to make a certified copy thereof as a part of the record, and send it, with the other record, instead of sending the original. No question is made of the truth of these matters. The appellant contends that the state is thereby estopped from making and insisting on this motion.

It is our opinion that, under the facts and circumstances given above, it was proper for the clerk under the law to copy, as was done in this case, the statement of facts as a part of the record, instead of sending the original here; and that the state is estopped from making and insisting upon this motion to strike out.

In addition to this, the appellant has made a motion for certiorari to require the district clerk to send up the original statement of facts in the event this court should strike out this statement of facts. The result of this would be simply to delay the case, and, as we have a true copy of the statement of facts, the said motion to strike out is denied, and also the appellant's motion for certiorari is denied, and we consider the statement of facts in the record in disposing of the case. The statement of facts in this case is about 130 full pages of typewritten matter, which would make perhaps 200 pages of ordinary printed matter. We have carefully gone over and considered it, time and again, in arriving at the disposition of the case. There was much dispute in the testimony. The state's main witness, the young girl assaulted, was supported in her testimony by many facts and circumstances, and some of her testimony was also disputed by others and by some of the circumstances. It is unnecessary to give these. The law (C. C. P. art. 766) says: "The jury in all cases are the exclusive judges of the facts proved, and of the weight to be given to the testimony. * * *" All these matters were therefore exclusively for the jury. The evidence from the state's standpoint is amply sufficient to sustain the conviction. We will therefore give, succinctly only, some of the evidence which must have been believed by the jury which fully justified the verdict.

The young girl assaulted, Naoma Dickey, was 15 years of age on October 17, 1909, less than 3½ months prior to the assault, which occurred on January 30, 1910. The first time she had even seen, known, or met the appellant, who was a young man about 22 years old, was on January 15, 1910, at night at a party at one of her neighbor's where they were introduced, and when she talked to him only about 15 minutes. He lived at Quitman, some 12 or 15 miles from where she lived. She lived in the country. At this party he informed her that he and a friend of his, Jim Denton, expected to return to that community in about two weeks, his friend to call upon Miss Willie Jones, one of her friends, and he made a conditional engagement with her at that time for him to see her at the home of Miss Willie Jones. This, however, was conditioned upon his informing her by mail of whether or not he and his friend would call. On the next Tuesday after the party on Saturday night, he did write her a letter, and informed her that he and his friend would make and carry out the conditional engagement he had made with her. She answered the letter, agreeing to the arrangement. Her friend, Miss Willie Jones, lived about two miles from her, and had two sisters. Miss Willie and her two sisters were grown young ladies. She then arranged to spend Saturday night with them at their home, where appellant and his friend were to call the next day, Sunday, and did so. Sunday evening about 2:30 or 3 o'clock appellant and his friend arrived at the house of Mr. Jones in appellant's buggy, where all of the young ladies were. Another young lady was visiting them, and another young man was there at the time calling. This other young man, Gus Caton, it appears, who had gone to Mr. Jones' in the morning and spent the day there, had no connection with the appellant and his friend. After appellant and his friend reached Mr. Jones', where the young ladies were, they remained at the house all together for about 30 minutes. Either appellant or the other young man who was there when appellant arrived proposed going driving. It was thereupon arranged that Mr. Caton should take Miss Myrtle Jones, and appellant the young girl assaulted; appellant taking her in his buggy and Caton taking Miss Jones in his. The two couples went out together to the buggies. There was no understanding between them where they were going. They were just going driving. They started about half past 3 in the evening. The other couple drove off first, and got about 50 yards ahead before appellant and the young girl started. They all started off in the same direction. The road from Mr. Jones' house went into another public road a short distance from Jones' house. Appellant for awhile after they started drove slowly; the other couple driving faster.

The young girl, the complaining witness, then testified substantially this: "Tom drove slow after we started off. We did not keep up with the other buggy. They drove fast and Tom continued to drive slow. The other buggy got out of my sight. The other buggy was out of sight when we got to the place where the Golden road intersected the Alba and Quitman public road, near Mr. Butts' house. The last time I saw the buggy Gus and Myrtle were in was about one-half mile from Mr. Jones' house. Tom and I were then on the Golden road going south, and were about one-half mile down the Golden read. This Golden road went into another road. When we got to the place where the Golden road intersects the Quitman and Alba road, I said: `Where is Gus and Myrtle?' and Tom said: `That was them going east down the Quitman and Alba road towards Quitman.' And I said to him: `We want to be sure to follow them.' He said: `We were.' When we got down to where the Golden road intersected the Quitman and Alba road, we turned east. The Quitman and Alba road does not go by Mr. Jones.' The Golden road does not cross the Alba and Quitman road. It stops when it gets to the Quitman and Alba road. When we turned east, we were going towards Alba and Golden. When we turned east towards Quitman, I saw a buggy ahead of us. I thought it was Gus and Myrtle. It was going east. We did not overtake that buggy. We just barely kept in sight of it all the way, and it finally got entirely out of our sight. Tom was driving slow at this time. We drove slow all the way down there. His horse was walking most of the way. There was nothing said by either Tom or myself about driving fast. Well, I...