Croomes v. State

• Decision Date: 07 June 1899
• Citation: 51 S.W. 924
• Parties: CROOMES v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 924

CROOMES v. STATE.

Court of Criminal Appeals of Texas.

June 7, 1899.

Appeal from district court, Johnson county; J. M. Hall, Judge.

George Croomes was convicted of an assault with intent to rape, and he appeals. Affirmed.

O S. Lattimore, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was indicted for an assault with intent to rape one Nora McClure, a female, then and there under the age of 15 years; and another count is that he did then and there unlawfully attempt to have carnal knowledge of Nora McClure, a female, then and there under the age of 15 years, said attempt not constituting an assault with intent to commit the offense of rape. Upon this indictment appellant was convicted, and the jury assessed his punishment at confinement in the penitentiary for 35 years, and he appeals.

The record does not contain a statement of the facts, and there are but two bills of exception. The first bill of exceptions complains of the action of the court permitting Mrs. McClure, the mother of the injured child, to testify as to certain statements which were made by the child to her a short time after the alleged assault, to which defendant objected, because such statements would be hearsay, and because said Nora McClure was incompetent to testify, and such evidence would be the repetition of the statement of a person who was so incompetent; which objections were overruled, and Mrs. McClure testified: "I was about twelve feet from the negro's house, when the door opened, and Nora came out, crying. I took her up, and asked her what was the matter, and took her about fifteen steps away, and talked to her about it. And she said George got her to come into his room by telling her he wanted to show her a pretty, and that he unbuttoned her panties and unbuttoned his pants, and took out a long black thing, and hurt her." It appears from the first part of this bill that the judge had declared said Nora McClure as incompetent to testify, on the ground of incapacity to understand the nature and obligation of an oath. We do not think the contention of appellant is correct. The mere fact that the child was incompetent to testify in court would not render her statement inadmissible when the same was almost a part and parcel of the act itself. It appears that the mother did not take the child more than 15 steps from where the injury occurred, and the declaration was there made by her as to what appellant had done to her. We think the evidence was admissible as part of the res gestæ, and the mere fact that the child was incompetent to testify as a witness in the trial would not render her statement, in the present instance, inadmissible. Certainly her acts and declarations do not show any character or kind of premeditation, but are what the books frequently term "verbal acts," and clearly come within the rule of res gestæ. People v. Ah Lee, 60 Cal. 85; McGee v. State, 31 Tex. Cr. R. 71, 19 S. W. 764; Testard v. State, 26 Tex. App. 260, 9 S. W. 888; Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892; Whart. Cr. Ev. (8th Ed.) pp. 262, 263; Underh. Cr. Ev. p. 468. The only authority we have found that states the contrary of this proposition is Underh. Cr. Ev. p. 474, in this language: "If the complainant is too young to comprehend the nature and responsibility of an oath, her testimony is not admissible, nor are her statements made out of the court permitted to be proved." In support of this proposition the text cites Reg. v. Nicholas, 2 Car. & K. 246; Rex v. Williams, 7 Car. & P. 320. These authorities are not before us, but we do not think they announce the correct principle of the law in this case.

Appellant's second bill of exceptions complains of the action of the court permitting the witness Mrs. McClure to testify: That when she went towards defendant's room the door was opened, and the child came out, and the defendant sprang behind the door; and that she saw the skin of his body between his pants and shirt; and that, after she took the child away, she came back, and talked to defendant, and asked him what he meant by mistreating her child so; and defendant said: "Mrs. McClure, I have not hurt her yet. For God's sake, don't tell on me, and I will do anything on earth you want me to." That thereafter defendant was a witness on his own behalf, and testified: "The child came out to my room, with her little drawers down, and wanted me to fasten them up, and I declined, and she commenced to cry; and her mother came and took the child down to the closet, and whipped her, and then came back, and asked me what I had done to the child; and I said, `Nothing;' and she said I had, and that she was going to tell her husband on me, and he would kill me; and I begged her not to do anything like that, for he might just come out there, and kill me, without giving me a chance to explain; and I did not say to Mrs. McClure, `I have not hurt her yet; for God's sake don't tell on me.'" And that thereafter defendant offered as a witness Wiley Pollard, the deputy sheriff who arrested him, and offered to prove by said Pollard that he had a conversation with defendant two hours after his arrest, and before he had consulted counsel, and before he had seen any one; and that defendant, in said conversation with him, made the same statement as made by him on the witness stand, — to which the state objected, and the court sustained the objection. And the bill further shows that by said Pollard defendant would have proved that about two hours after his arrest he made to said Pollard the same statement as by him here testified. There certainly was no error in the court's refusal to permit the introduction of the statement of the witness Pollard, because the same was a self-serving declaration of appellant, and as clearly within this rule as it is possible to make one. We do not gather from the bill that appellant objects to the testimony of Mrs. McClure, but, as we understand the bill, her testimony was placed in it in order to show that the testimony of the witness Pollard was admissible. We do not think her testimony, although admissible itself, would justify the witness Pollard to detail the self-serving declarations of appellant. We know of no rule which says that the admission of testimony perfectly legitimate will justify or furnish a predicate for appellant to introduce self-serving testimony.

Appellant's first ground of complaint in his motion for new trial is that the verdict of the jury is contrary to the law and the evidence. We cannot consider this contention in the absence of the statement of facts. And in this connection we find among the papers what purports to be a statement of the facts, filed since the making up of the transcript. The transcript was filed in this court on February 23, 1899, at Dallas, and the purported statement of facts was filed on March 15, 1899. Attached to the purported statement of facts is an affidavit, substantially as follows: "O. S. Lattimore states that he was attorney for appellant, who was tried on June 18, 1898, in the district court of Johnson county, charged with assault to rape one Nora McClure; that in the afternoon of the date of said trial three witnesses testified; that up to noon there was no stenographer to take down the evidence, but that when court adjourned for dinner affiant procured the services of H. R. Whyte, a competent and reliable stenographer, who took down the testimony of the other witnesses and of Mrs. McClure when she was recalled in the afternoon; that all that part of the statement of facts hereto attached was taken down and written out by said stenographer. Affiant says that immediately after the conviction of said Croomes he made a motion for new trial and in arrest of judgment, which was duly filed. Affiant requested that he be notified at his home, in Ft. Worth, Texas, of such time as the district judge would hear said motion. Affiant was subsequently notified that said motion would be heard and disposed of upon, to wit, the ___ day of ___, and was present, and presented said motion in person; but that same was overruled. That said day upon which action was had upon said motion was at the end of the said term of the court, and affiant moved the court to grant him a ten-day order in which to file said statement of facts, which the court stated to affiant would be entered. That Hon. J. M. Hall, the judge of said court, then stated to affiant that, if said statement of facts was not agreed upon and filed within the time so allowed by law, that he would have the same filed back as of a date within said time so allowed by law. That affiant immediately requested said stenographer to make out and prepare that part of said statement of facts which was taken down by him, and affiant at once prepared a correct statement of such of the facts of this case as were not heard by said stenographer; and within a day or two after the order of said court overruling said motion affiant forwarded said entire statement of facts to the county attorney of Johnson county, requesting him to examine same, and agree to same, and have same approved by said judge, and filed with the record. That prosecuting attorney, instead of doing so, and failing and refusing to agree to said statement, and to submit same to said judge, or to file the said statement of facts, together with one made out by himself with said judge, kept same for some time, and then returned same to affiant with a statement that he could not agree to same, and with a further statement that he would not agree to the statement made out by the stenographer. Affiant thereupon returned said statement to said county attorney with the request that he submit same to the said judge, whom affiant was informed was away from his said home, and in another part of his district, and to have the same filed. Affiant says that he was not informed that there was no statement of facts filed, and fully...