Duckett v. State

• Citation: 150 S.W. 1177
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Decision Date: 06 November 1912
• Parties: DUCKETT v. STATE.

150 S.W. 1177

DUCKETT v. STATE.

Court of Criminal Appeals of Texas.

November 6, 1912.

Rehearing Denied November 27, 1912.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

Walter Duckett was convicted of assault with intent to rape, and he appeals. Affirmed.

S. P. Sadler, of Gatesville, for appellant. J. R. McClellan, Dist. Atty., of Gatesville, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

By proper indictment it was charged that appellant on April 5, 1911, did unlawfully make an assault upon Lillie May Young, a female under 15 years of age, she not being his wife, and attempt to ravish and have carnal knowledge of her. The appellant was convicted and given the lowest punishment—two years in the penitentiary.

In order that the questions raised and decided may be properly understood, we make a statement of the material evidence. Lillie May Young, the alleged assaulted party, was a little girl just 8½ years old. Appellant was a large boy in his nineteenth year; having reached 18 years of age in December prior to April 5, 1911, the date of the alleged assault. He was nearly six feet tall, and weighed about 145 pounds. Of course the little girl was not his wife. The parties and their families lived in the country. The little girl and some six or seven neighboring children attended a school some mile or two distant from her home. These children usually went to school together, which appellant knew. In order for the little girl to go to school, she had to pass along the road near to the residence of two other neighbors—one about a half mile from the scene of the trouble, and the other something over 300 yards therefrom. Other, neighboring residences were also off at different directions from about a half mile to some distance further. A public road also lay some distance from the scene. Much evidence was introduced by both the state and the appellant to show whether or not he and the little girl could have been seen from where the scene occurred to these respective residences and said road. Taking all the evidence together, the jury were authorized to believe therefrom that from the lay of the land and more or less obstructions, and the distances, one or all, the parties could not have been seen if down on the ground, or the appellant kneeling. If so, that from certain positions at and near the nearest house they could, and from other positions thereabout, they could not, have been seen. All of this evidence was introduced for the purpose of enabling the jury to determine the probability or improbability of the claimed assault. In order for said little girl and other school children to reach the schoolhouse, it was necessary, or at least usual, for all of them to pass through a fence from the outside to the inside of the pasture or field and along where the alleged assault occurred. All of said school children, except the little girl, had already passed along the same route to school that morning from an hour to a half hour before the alleged assault, and appellant saw and knew this at the time. Just after these children had passed on to school, the appellant was sent by his father to hoe some potatoes which were growing right near or in the locality where these children had to pass under the fence and on through the pasture to school, and shortly before the alleged assault the appellant and a younger brother, who attended the school, went to this potato patch, the two stopping together only a short time, when the younger brother also went on to school. Just after this, the appellant began hoeing the potatoes, and the evidence clearly justified the jury to find and believe that he remained engaged at this until the little girl appeared upon the scene. She had been detained at home because of a late breakfast that morning, and could not and did not go with said other children to school, but reached this point about 9 o'clock, or a little after, on her way to school.

We will give, at this point, the testimony of the little girl as it is copied in the statement of facts: "I was right down at the fence that went into Mr. Duckett's pasture when I first saw the defendant that morning. When I first saw him, he was hoeing. When I got to the gate I went under the fence at the east end of the gate. Walter Duckett was hoeing potatoes. There was a rake near the fence. Walter Duckett was hoeing at the west end of the rake, about 40 feet from the west end of the rake. There was a road or trail that we children traveled going along there to school which passed near the east end of the rake. When I got under the fence Walter Duckett was at the west of the rake. As I went on toward the schoolhouse by the east end of the rake, Walter Duckett was about the west end of the rake. Just about then he said, `Come here Lillie May, come here.' I turned toward him. He came toward me. He just pulled up my dress, laid his hand on my leg, and asked me what it was. His hand was under my dress. He was on his knees. When he put his hand on my knee I commenced crying. He turned me loose, and I started on to the schoolhouse. I went in the road. I traveled slow until I got a good piece, and then I ran the balance of the way. When I got to the schoolhouse, books had been taken up. He put his hand on my leg under my dress. He turned me loose after I commenced crying. Miss Josie Priddie was hearing the fourth grade class when I got to school. It was about half an hour after I got to school before recess. I had a conversation with Miss Josie Priddie at recess. I was out of the schoolhouse when I had this conversation. I called her off to one side. When I talked to Miss Priddie I told her what had happened down there. I told Miss Josie Priddie what had happened down at the rake. * * * It was on Wednesday last spring some time. I stayed at school that day. I came home that evening. I made a statement that evening to my father and mother when I got home about what had happened to me that day. He put his hand right there, just about my knee, and asked me what that was." Cross-examination: "Q. You testified in the examining trial? A. Yes, sir. Q. Didn't you testify before on the cross-examination this, `When he put his hand on my knee he asked me, "What is this?"' A. He put his hand up above my knee. Q. Did you say this, `When he put his hand on my knee he asked me, "What is this?" I did not answer him, and he got up and went on; that is all that occurred.' You signed that. Don't you remember that they took down what you said? A. Yes, sir. Q. And you signed your name to it? A. Yes, sir. Q. Did you say, `When he put his hand on my knee he asked me, "What is this?" and I did not answer him and he went on'? A. He stayed on his knees. Q. You went on? Did he say anything to you when you began to cry? A. No, sir. Yes, sir; he said, `Lillie May, what is the matter?' Q. Then you' turned and went on? A. Yes, sir. Q. He stayed there? A. Yes, sir. Q. He never tried to follow you? A. No, sir. Q. Never said anything more to you? A. No, sir. Q. Never did anything more to you? A. No, sir. Q. Just put his hand on you and said, `Lillie May, what is this?' A. Yes. Q. You did not say anything and started to cry, and then he said, `Lillie May, what is the matter?' then you turned and walked off? A. Yes, sir. Q. And you said that he never tried to follow you? A. No, sir. Q. That is all that happened then? A. Yes, sir. Q. He never tried to follow you? A. No, sir. Q. He never said anything more to you? A. No, sir. Q. That was all that was said and done? A. Yes, sir."

Miss Josie Priddie testified: "I was teaching school at the Schley schoolhouse on the 5th day of last April. I know Lillie May Young. I remember the circumstance at the time she claimed an assault was made on her by Walter Duckett. I do not remember what day of the week it was. On the morning it is claimed that this occurred I took up school about 15 minutes until 9. It may have been 2 or 3 minutes from that time, but it was right about that time. Autry's children, Urseries' children, and Johnson's children usually came to school with Lillie May Young. Autry's and Urseries' children were there when school was taken up that morning. Johnson's children did not come that day. Lillie May Young was not there when school was taken up, but came about 45 minutes later. Her appearance attracted my attention when she came in the house. She came in and was somewhat excited, and I did not stop to question her, but I noticed that she was excited. I noticed that the moment she stepped in the schoolroom, and I did not have a chance to question her until recess. There was something in her expression that showed me she was excited, and I noticed it the minute she stepped in the schoolroom. It was about 45 minutes after she came in until recess. At recess she called me off and had a conversation with me. As soon as I dismissed for recess, I walked out several steps, and we were going to the tree, and I had not gotten to the tree when she stopped me. She made a statement to me about something that had happened to her that morning as she came to school. She named Walter Duckett as one whom she had seen on the road. When she called me off she was still excited; and, as soon as she began talking to me, she commenced crying."

The testimony further shows that, as soon as the school dismissed that evening for the day, this little girl went home, and as soon as she reached there she complained to her father and mother of what had occurred to her that morning on her way to school, but witness was not permitted to testify anything of what occurred at the time, or who the party was.

Appellant testified, denying that he saw or had anything to do with the little girl that morning; claiming that after he began hoeing the potatoes, having a target rifle with him, he left and went to a different locality in the field or pasture after a rabbit, being gone several minutes, when he returned and...