Cox v. State

• Decision Date: 05 December 1917
• Docket Number: (No. 4701.)
• Citation: 205 S.W. 131
• Parties: COX v. STATE.
• Court: Texas Court of Criminal Appeals

Page 131

205 S.W. 131

COX v. STATE.

(No. 4701.)

Court of Criminal Appeals of Texas.

December 5, 1917.

On Motion for Rehearing, June 28, 1918.

Appeal from Travis County Court; D. J. Pickle, Judge.

Mamie Cox was convicted of vagrancy, and appeals. Reversed and remanded.

White, Cartledge & Wilcox and Brownlee & Goldsmith, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The grand jury of Travis county on June 20, 1917, duly indicted appellant, alleging therein that:

"On or about October 15, 1916, and thence continuously up to May 1, 1917, she was, and is, a common prostitute and vagrant, and during said time she did pursue the avocation of a common prostitute and did make a business of selling the use of her person to the male sex for the purpose of illicit carnal intercourse."

She was tried on August 16, 1917, convicted, and fined $50.

The state introduced several witnesses who gave material incriminating evidence against her. The substance and effect of their testimony will be here given.

Littlepage Hill testified: That he had lived in Travis county all his life and in Austin in November and December, 1916, at which time he was driving a service car. He lived at Manor at the time he testified. That he knew appellant. That in November or December, 1916, he met her and another girl, whom he did not know, on a certain street in Austin, it seems by engagement, took them in his automobile, drove up to the side entrance of the Avenue Hotel, and there picked up two men, strangers to him, whose names he did not know, and who were standing in the door. As soon as he stopped, these men immediately walked out and got in his car with the women. That he then took the two couples south, across the river, and up it some quarter or half mile to a secluded place, and they had him stop. The two couples then got out of his car, went off out of his sight, remained some 30 or 40 minutes, returned, got in his car, and had him drive them back to the city. This it seems was at night. Of course, he did not see what they did after they got out of his sight.

Jim Sullivan testified: That he had lived in Austin all his life and for about a year and a half had been driving a service car. That he knew appellant and had known her a year or two. That about March 1st he phoned her, and she met him with his car near her house where she then lived in Austin. He had a man in his car with him who was a traveling man stopping at the Driskell Hotel. He had never seen the man before this occasion. He took them out some blocks on the Manor road, left that road, and went up a lane some distance from it and stopped. She and this strange man then got out of the car together, went some distance out of his sight, remained away some 30 minutes, came back, got in the car together, and he took her to near her home, and a block or a half therefrom, and she got out of his car. That about a week after that he took another strange man out to near her house where she met him, got in his car, and he took them out the same way to the same place where he had taken her the week before. That when they got out of his car they were gone out of his sight some 30 minutes, when they came back, got in his car, and he drove to near where she lived. She got out and went on alone, and he went on with the man. Both of these occasions were at night.

R. M. Thompson testified: That he knew appellant and had known her since October, 1916. That he lived in the same house she did from about October 24 to March 13, 1917, except six weeks of the time when he was in Waco. That the woman whom he afterwards married was living there in the house during this time. That he slept with this woman there during all this time. That while he was thus living with the woman he afterwards married, Edgar Martin was there with appellant, sleeping with her. That he had many times seen her in bed with him at night. That during this time there were other men there to see appellant who were total strangers to him, and in addition he at one time saw a certain man who lived in Austin at her house.

W. H. Farley, who lived at Hutto, in Williamson county, on the International & Great Northern Railway, testified: That he had known appellant from 1915 when he was at Austin in the high school; that about March 1, 1917, he phoned her and another girl at Austin and got them to come to Hutto that night to meet him and J. P. Hutto, who also lived at Hutto. That appellant and this other girl that night went on the International & Great Northern train to Hutto, where he and his companion met them. That they took them in the depot, where there were two cots, and "stayed" with them from that time until nearly 5 o'clock next morning, when they returned to Austin on the International & Great Northern early train. That that night in the depot he "stayed" with the other girl and Hutto "stayed" with appellant, each indulging in sexual intercourse with the respective girls. He paid his girl $10, and Hutto paid appellant $10. That one week after that appellant and another girl went from Austin to Hutto at the same time on the International & Great Northern Railway train, reaching there about 11 o'clock at night, and returned from there between 4 and 5 o'clock the next morning. That he and Will Goodwin met the two girls at Hutto at the time, and took them in an automobile to a house one mile out of Hutto, staying there with them until between 4 and 5 a. m., and had sexual intercourse with them, then took them back to Hutto to catch said early train to Austin. He swore that he and Goodwin swapped girls and indulged with both of them that night. It seems each girl was paid $10 on that occasion.

Said J. P. Hutto testified: That about March 1st appellant and another girl met him and said Farley at Hutto just as Farley had testified. That they took them into the freight depot and stayed with them from 11 o'clock at night until between 4 and 5 o'clock the next morning and had sexual intercourse with them. That he had appellant and Farley had the other girl that night. That each had paid their respective girls $10.

Mr. R. H. Holman testified that he went to that early train on that morning to come to Austin; that at the time he saw appellant and said other girl in the depot waiting for the train. He and said witnesses Hutto and Farley, swore positively that it was appellant at Hutto at said time and that they could not be mistaken as to her identity.

Appellant herself testified and denied all the state's incriminating testimony. She testified, among other things, that she had not had illicit intercourse with any man since she promised to live right, which was about two years before the time she was testifying, and that Mr. Kennedy had asked her to give up her position with said certain man in Austin and live right. She also denied that said man had been staying with her since she quit him and promised to live right; and that, while this man came to her house on one occasion to induce her to return to him, she told him he could kill her before she would go back and live the life she had lived.

All authorities hold that illicit sexual intercourse can be proven by circumstantial evidence; in fact, that such acts must almost necessarily be proven by circumstances. In 4 Elliott on Ev. § 2790, it is said:

"But few persons are so depraved and so hardened to all sense of shame that they commit the offense (illicit sexual intercourse) except in the most secret and clandestine manner."

And further quoting from an English case, in the same section it is said:

"In every case almost the fact (sexual intercourse) is inferred from circumstances that lead to it by fair inference as a necessary conclusion."

Again, in section 2792, quoting from an Indiana case it is said:

"From the nature of the case, it will rarely happen that direct and positive evidence of acts of illicit intercourse can be obtained. Accordingly, the unlawful and lascivious commerce may be inferred from circumstances proven, which raise such a presumption of guilt as leaves no reasonable doubt, in that regard, in the minds of the jury."

A large number of cases from many of the states are cited in support of this doctrine.

In Springer v. State, 16 Tex. App. 593, this court said: To be a common prostitute, her (the woman's) lewdness must be more general and indiscriminate than to have illicit intercourse with the one man only. This is quoted and approved in Ramey v. State, 39 Tex. Cr. R. 203, 45 S. W. 489.

In 32 Cyc. 731, as to what is prostitution, or a common prostitute, it is said:

"It is the practice of a female offering her body to an indiscriminate intercourse with men as distinguished from sexual intercourse confined to one man."

In State v. Thuna, 59 Wash. 689, 109 Pac. 331, 111 Pac. 768, 140 Am. St. Rep. 902, it is held that a woman who submits herself to indiscriminate sexual intercourse without hire is as much a common prostitute as one who does so solely for hire.

In State v. Rice, 56 Iowa, 431, 9 N. W. 343, it is held that whether or not a woman is a common prostitute is a question of fact which does not alone depend upon the number of persons with whom she has illicit intercourse, and a jury may consider her general conduct and other circumstances tending to show whether or not she so holds herself out to the public. And in that case, and also in State v. Clark, 78 Iowa, 492, 43 N. W. 273, it was held that prostitution does not alone consist in sexual commerce for gain.

There can be no doubt but from the evidence herein the jury were clearly authorized, if not required, to believe that appellant had sexual intercourse at the time the witness Hill took her and another girl and two strange men from the Avenue Hotel, carried them to a secluded place across and up the river as detailed by him. Also, that she had sexual intercourse with a strange drummer whom Sullivan took with her into the country...