Cottrell v. State

• Decision Date: 22 February 1922
• Docket Number: (No. 6588.)
• Citation: 237 S.W. 928
• Parties: COTTRELL v. STATE.
• Court: Texas Court of Criminal Appeals

237 S.W. 928

COTTRELL v. STATE.

(No. 6588.)

Court of Criminal Appeals of Texas.

February 22, 1922.

Appeal from District Court, Comanche County; J. R. McClellan, Judge.

Odis Cottrell was convicted of incest, and appeals. Reversed and remanded.

Goodson & Nabors, of Comanche, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

This is a case of incest; punishment fixed at confinement in the penitentiary for a period of seven years. The act of intercourse relied upon is charged to have taken place in the fall of 1919. The prosecutrix testified to many prior acts. At the time of the trial, she was 17 years of age, and the familiarity, according to her testimony, had continued for several years.

Upon information given by her, another relative, Jess Stagner, was arrested. On cross-examination she was asked if she had not made a written statement to the effect that Stagner, and no other, had had intercourse with her. She admitted having made the statement, but declared that she had not stated therein that he was the only man with whom she had had intercourse. She said that the written statement was given to the county attorney, but was not sworn to. She also admitted that before the grand jury she had testified to the act of intercourse with Stagner, and that she told her grandmother and various others, including Mrs. Augusta Moore, that Stagner was the father of her child, but denied saying that he was the only person with whom she had had sexual relations. She said that she refrained from telling her grandmother about it, because she did not like to tell her that the man who had ruined her was her grandmother's son.

Appellant, according to the testimony, seems to have been a young man about 22 years of age, and Stagner, who was a cousin of the prosecutrix, was about 28 years old. During the cross-examination of the prosecutrix, the counsel for the appellant asked to be put in possession of the written statement which the prosecutrix had made. The court ruled:

"For the present I will hold that you are not entitled to the statement, if same was made."

For corroboration of the prosecutrix, reliance was had upon the testimony of Stagner, who came to the courthouse from the jail and testified that on a certain date in the fall of 1919 he had seen the appellant and prosecutrix under circumstances warranting the inference that they had been engaged in sexual intercourse.

Application for continuance was made to secure the testimony of Mrs. Augusta Moore. The application complies with all statutory requirements. It was the first application, and showed diligence, complying with the requirements of the law. By her testimony, appellant expected to prove that the prosecutrix had said to her that Jess Stagner was the cause of her pregnancy; that she had not had sexual intercourse with any other; also that on a certain occasion in the fall of 1920 she had seen Jess Stagner in the room of the prosecutrix at nighttime under circumstances indicating that they were about to have sexual relations.

After the verdict, the county attorney put into possession of the counsel for appellant the affidavit of the prosecutrix, which we copy:

"Office of E. C. Barton, Justice of the Peace, Precinct No. 2, Pilot Point, Texas, ____, 191_. State of Texas, County of Denton. In the Matter of Inquiry as to Betrayal of Floy Cottrell. On this day, on the investigation of the matter of the betrayal and seduction of Floy Cottrell, of Comanche county, the said Floy Cottrell, after being by me duly sworn, deposes and says that while at home at her grandfather's she was seduced by J. J. Stagner, and that she became pregnant from having carnal intercourse with him, the said Stagner; that she, the said Floy Cottrell, further says that she has never had carnal intercourse with any other person than the said J. J. Stagner. This occurred in April or May, 1920.

                                             "Floy Cottrell
                

"Subscribed and sworn to before me this 21st day of January, A. D. 1921. E. C. Barton, Justice of the Peace, Denton County, Texas, ex officio Notary Public."

Appellant advances the proposition that inasmuch as he was unable to obtain this paper during the trial, notwithstanding it was in possession of state's counsel, the court ruling that he was not entitled to it, it is now in the nature of newly discovered evidence. It appears analogous to an instance in which the witness present at the trial suppresses testimony but which he afterwards divulges. In the matter of diligence to procure the statement, there occurs to us no laches upon the part of the appellant. Gainer v. State, 89 Tex. Cr. R. 538, 232 S. W. 830, and cases cited.

While the statement is in the nature of impeaching testimony, it not only tends to discredit the prosecuting witness, but the nature of it is such that, considered in connection with her testimony and the facts in the case, the conclusion cannot, in our judgment, be escaped that it was contradictory to her testimony as to the main fact—that of appellant's relations with her—to a degree that renders it of more importance than mere impeaching testimony. Reed v. State, 27 Tex. App. 317, 11 S. W. 372; Stewart v. State, 52 Tex. Cr. R. 100, 105 S. W. 809; Piper v. State, 57 Tex. Cr. R. 606, 124 S. W. 661; Eppison v. State, 82 Tex. Cr. R. 369, 198 S. W. 948. It was upon the testimony of Floy Cottrell, the prosecutrix, and that of Jess Stagner, who testified that he had intercourse with her, that the state relied for a conviction. Her statement under oath, if true, exculpated the appellant, and was contradictory of her present testimony, and would have been of value in appellant's endeavor to elicit from the prosecutrix an admission consistent with his theory of innocence. In this character of case, the importance given to such contradictory statement is indicated in the case of Blair v. State (Tex. Cr. App.) 56 S. W. 622, in which the court refused to sustain the conviction for rape, where the testimony of the prosecutrix, in different parts of the record, was directly contradictory. She, in one instance, testified to facts...