Davis v. State

• Citation: 272 S.W. 480
• Decision Date: 08 April 1925
• Docket Number: (No. 8583.)
• Parties: DAVIS v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

272 S.W. 480

DAVIS v. STATE.

(No. 8583.)

Court of Criminal Appeals of Texas.

April 8, 1925.

Rehearing Denied May 20, 1925.

Appeal from District Court, Marion County; R. T. Wilkinson, Judge.

George Davis was convicted of rape, and appeals. Reversed and remanded.

E. B. Lewis and L. S. Schluter, both of Jefferson, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Defendant was charged by indictment with having committed the offense of rape upon one Onay Parker in having carnal knowledge of her by force and without her consent. He was convicted, and his punishment assessed at confinement in the penitentiary for 12 years.

After the trial was concluded, appellant attacked the indictment, averring that it purported to be found by a grand jury organized at the November term, 1922, but that by indorsement upon the back thereof the indictment shows not to have been returned and filed until November 24, 1923, long after the grand jury which purported to have found it had been discharged. The court below was requested to send up the original indictment and the capias for our inspection. After inspection, we regard the objection as hypercritical. It is perfectly apparent from an inspection of said documents that it was the custom of the clerk to place a comma after the dates written by him, and that, in placing the comma after the date 1922, it was so placed as to make it appear in some instances as a part of the last two, and makes it resemble the figure 3. The court properly overruled the contention.

In bill of exception No. 1 complaint is made of the ruling of the court holding the witness Onay Parker competent to testify. Defendant asserted that she was not a competent witness because of her mental condition, and did not understand the nature and obligation of an oath. The jury was retired, and these matters investigated before the learned trial judge. Article 788, C. C. P., in part provides: "Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath, * * *" are not competent witnesses.

We quote from the opinion in Nicholas v. State (No. 9240, opinion March 25, 1925), 270 S. W. 555:

"The competency of a witness is primarily a matter to be determined by the judge presiding at the trial of the case, and his ruling will not ordinarily be overturned, unless it appears that in accepting the evidence judicial discretion was abused. Hawkins v. State, 27 Tex. App. 273, 11 S. W. 409; Charles v. State, 81 Tex. Cr. R. 457, 196 S. W. 179; Anderson v. State, 88 Tex. Cr. R. 307, 226 S. W. 414.

"In testing the competency of a child witness, the law permits the use of simple words, and does not demand that a child possess or comprehend a vocabulary such as would be expected of an adult. The test applied is, not the age, but the intelligence, of the child. See Underhill on Crim. Ev. (3d Ed.) § 331. The ability to give a clear and concise recital of the events and knowledge of the fact that falsehood will entail punishment are cogent factors supporting the theory of competency. Valdez v. State, 71 Tex. Cr. R. 487, 160 S. W. 347; Anderson v. State, 88 Tex. Cr. R. 307, 226 S. W. 414; Underhill on Crim. Ev. (3d Ed.) § 331; Carter v. State, 87 Tex. Cr. R. 299, 221 S. W. 603. The fact that a child has been instructed touching the nature of an oath does not render it an incompetent witness. 1 Wharton's Crim. Ev. p. 745; 16 Amer. & Eng. Ency. of Law (2d Ed.) p. 227; Anderson v. State, 88 Tex. Cr. R. 307, 226 S. W. 414."

Onay Parker was 22 years old. In testing her competency two physicians were examined who expressed the opinion that she had an undeveloped brain. One of them thought she did not have mental capacity to understand the obligation of an oath. This physician had theretofore examined her to ascertain if she was pregnant, but had never talked to her with a view of testing her mental condition. He judged from her looks and manner that she had a brain developed about like a 10 year old child. The witness herself was examined before the court. At his direction her entire examination is brought forward with the questions and answers. We think it unnecessary to set them out in detail in this opinion. She seemed to understand all questions which were not involved and which were couched in simple language, and made answers (partly in words and partly by signs) which appeared to be intelligible and in response to the questions propounded. It appears from her examination that one of the attorneys acting as counsel for the prosecution had informed her with reference to the punishment that might follow if she testified falsely. Under the authority in Anderson v. State, 88 Tex. Cr. R. 307, 226 S. W. 414, and the authorities therein cited, there appears no impropriety in this. We observe nothing which shows any abuse of discretion on the part of the court in holding the witness competent.

Defendant offered to prove by the witness Dr. Moseley that, when the father of prosecutrix brought her to him for examination some months after the commission of the alleged rape, Butch Gray, an uncle of prosecutrix, accompanied them; and that Gray said "she was an idiot." Butch Gray was not used as a witness by either the state or defendant. The testimony offered through Dr. Moseley was purely hearsay and properly excluded.

The defendant offered to prove by Dr. Moseley, who was a practicing physician of more than 30 years experience, that "he was of the opinion that a man could not rape a woman without rendering her unconscious by a blow or the use of some anesthetic, and that all medical authorities were in perfect agreement and accord with this opinion." This evidence was excluded. Defendant has not favored us with any authority holding such testimony to be admissible. We know of none which authorizes the reception of expert testimony upon such an issue.

Defendant complains of certain argument made by counsel representing the state. The bill does not show that any objection was made to this argument at the time it occurred. The court certifies that no request was presented to withdraw it. There is nothing in the record to indicate that objection of any kind was intimated to the court prior to filing the motion for new trial. Objection thus made to argument comes entirely too late. Simmons v. State, 93 Tex. Cr. R. 421, 248 S. W. 392; Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485; Kirby v. State, 96 Tex. Cr. R. 590, 258 S. W. 822.

Complaint is made that counsel for the state was permitted to ask prosecutrix leading questions. The evidence shows this witness to have been afflicted from birth by some physical infirmity which prevented her from articulating plainly. She appeared to understand all questions that were asked her. Some she could answer by words in a way to be understood. In replying to other questions it was necessary for her to resort to signs in connection with words she could speak to make herself understood. By reason of this infirmity she had never gone to school, and her vocabulary was limited. As one of the exceptions to the rule excluding leading questions, Mr. Underhill in his work on Criminal Evidence, § 344, at page 478, says they are admissible where persons are hard of hearing, or deaf, or illiterate or stupid; they are also admissible where the witness' vocabulary is limited. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. Other authorities will be found collated under paragraph 7, § 157, Branch's Ann. P. C.

Bill No. 10 contains a complaint that the state was permitted to introduce what purported to be the evidence of Walter Parker the father of prosecutrix, taken on the examining trial. This bill is defective, and cannot be considered, because the purported evidence on the examining trial is not set out in the bill. Where complaint is made of the admission of testimony, a bill of exception is defective which fails to set out the evidence admitted over objection. For authorities collated see paragraph 4, § 210, Branch's Ann. P. C.

Miss Onay Parker, the prosecutrix, is shown to have been 22 years of age. From birth she had been afflicted with some trouble which interfered with her speech. Her arms and hands seemed to be partially paralyzed. She could get her clothes on, but could not fasten them, and was unable to dress and undress her baby. She appeared to have no trouble in communicating with those who were accustomed to talk with her, and could make the members of her family understand apparently without much trouble. The witness Colgin testified that he had known her quite a long time; that she knew what was said to her; that he had talked to her many times. Another neighbor testified that she could not articulate well, but could talk some, and understood thoroughly what people said to her, and what they did around her; that she had about the same intelligence as an 8 or 9 year old child. She testified before the court upon preliminary examination as to her competency, and both in that examination and in her evidence given before the jury appeared to understand all questions that were asked her and answered them with fair intelligence. She said that on one occasion when her father, brother, and sister were at work in the field while she was at home alone defendant came to the house, placed her on the bed, pulled up her clothes, and had intercourse with her; that she tried to push her clothes down, and tried to push him away, but without success. It was her testimony that this act was repeated by defendant on two other occasions, how long after the first, and the interval between the last two, she was not able to give. She claims that the other acts of intercourse occurred under circumstances similar to the first. She claims not to have given consent to any...