Foreman v. State

• Decision Date: 25 January 1911
• Citation: Foreman v. State, 134 S.W. 229, 61 Tex.Cr.R. 56 (Tex. Crim. App. 1911)
• Parties: FOREMAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 229

134 S.W. 229

FOREMAN v. STATE.

Court of Criminal Appeals of Texas.

January 25, 1911.

Appeal from District Court, Cherokee County; James I. Perkins, Judge.

Fare Foreman was convicted of rape, and he appeals. Reversed and remanded.

Donley & Guinn, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of rape upon a girl under 15 years of age; his punishment being assessed at 5 years' confinement in the penitentiary.

It is a conceded fact that appellant had intercourse with the girl. It is a conceded fact that she gave birth to a child on the 30th of December, 1907. The girl testified that appellant engaged in two acts of intercourse with her, one in 1905, and the other subsequently. The indictment was returned against appellant in the latter part of January, 1908. The girl also testified that the last act of intercourse was seven or eight months prior to the birth of her child; that Ben or Will Williams also had intercourse with her after the last act which she testified about occurring between herself and appellant; and that Williams was the father of her child, and not appellant. Appellant testified that he had two acts of intercourse with the girl, one in 1905 and the other in November, 1906, more than 12 months prior to the return of the indictment. The question at issue and fought out in the court below was not the innocence of the defendant, or to show he had not had intercourse with the prosecutrix, but that more than 12 months had elapsed at the time of the return of the indictment, and that the cause of action was therefore barred by the statute of limitation. This, we judge from the record and contentions of the parties, was the crucial and main point in the case. If appellant's testimony is true, the action was barred. If the prosecutrix's testimony is true, it was not barred. The child is supposed to have come in the ordinary period of gestation. At least there are no facts showing that it was an immature child; the evidence being that the child was born on the 30th of December, 1907, and was still living at the time of the trial, and this occurred on June 30, 1910. Appellant offered quite a lot of testimony to attack the evidence of the prosecutrix: First, to show that her testimony was false as to her statement that any act of intercourse occurred between them during the year 1907, and, among other things, to support this view of the case, he introduced evidence to show that he was not in the country at the time, and placed in such position that he could not have had intercourse with her as she testified. Second, to show that her testimony was false in regard to her statement that her husband was the father of the child, she having testified that he had had intercourse with her some time after appellant, during the year 1907, and that that was the only time that he had had intercourse with her, and that this act came so close to the birth of the child that it was a physical impossibility that he could have been the father of the child, and that her testimony was false in this regard. He then offered testimony to show that other parties had had intercourse with her in the year 1907, in the early part of it, coming down to the month of April. This seems to have been offered both as original and impeaching testimony. If her testimony is true that her husband had intercourse with her after she says appellant did, and between the latter act of appellant, and birth of her child, as she testified, her husband could not have been the father of her child. If the other parties mentioned in the evidence had intercourse with the prosecutrix in the early part of 1907, as offered by appellant, this would tend to show that one of them was the father of the child. This became an important fact because around these questions and these matters hung the...