Fredericson v. State

• Decision Date: 26 November 1902
• Citation: 70 S.W. 754
• Parties: FREDERICSON v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 754

FREDERICSON v. STATE.

Court of Criminal Appeals of Texas.

November 26, 1902.

Appeal from district court, Rusk county; Richard B. Levy, Judge.

Briscoe Fredericson was convicted of rape, and he appeals. Reversed.

P. O. Beard, W. W. Moore, and W. M. Futch, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at death. The indictment alleges the rape to have been committed on prosecutrix, Thaddie Hart; she, the said Thaddie Hart, being then and there so mentally diseased as to have no will to oppose the act of carnal knowledge; defendant then and there well knowing her to be so mentally diseased, etc.

By the first bill of exceptions, he calls in question the action of the court in permitting the witness Dr. Crane to state that from his examination of the prosecutrix as a physician, and based on his knowledge of her manner and demeanor, he considered her so mentally diseased as to have no will to oppose an act of carnal intercourse under certain circumstances. Appellant objected to this evidence on the ground that said Dr. Crane had not qualified as an expert on his voir dire examination, "but did testify that he had never made an examination of her mental condition as a physician; that all he knew of Thaddie Hart's mental condition was what he had seen of her at play with other children, in a general way, as any other man would. He further stated that he could not qualify as an expert, and could not answer as a physician." It is insisted by the assistant attorney general that this bill is insufficient, because the judge does not certify to the facts, but merely certifies that appellant objected on said grounds. We have examined the bill critically, and do not believe it bears out this contention. True, it does state that defendant objected to said testimony because illegal, inadmissible, etc., but it then proceeds to state "that said Dr. Crane had not qualified as an expert on his voir dire, but testified that he never made an examination of her mental condition, as a physician," etc., and then states "that he further stated that he could not qualify as an expert, and could not answer as a physician." This, it occurs to us, is a statement of what he did testify to, though in the bill it comes after the statement that he objected, etc. It is also contended that the court, in passing on the qualifications of an expert, should not be controlled by what the witness himself says in regard to his qualification. This might be true if there was testimony, aside from the witness' opinion as to his qualifications, to enable us to determine that he was qualified; yet we do not find such testimony in the bill. As presented, the bill shows that he testified as to the mental condition of the prosecutrix, as an expert and physician, from an examination of her, and based on his knowledge of her manner and demeanor. We do not understand it to purport to show that he rendered his testimony as a nonexpert. He was the only witness who assumed to testify as an expert, and his evidence was upon a vital issue in this case; that is, that prosecutrix did not possess the will power, on account of her mental disease, to oppose the act of carnal intercourse. Evidently it was bound to prove injurious to appellant.

We do not believe there was anything in the remarks of the county attorney, R. T. Brown, to the effect that the crime committed was one of the most damnable that had ever occurred in that community. We do not understand this to have been a denunciation of appellant, but of the crime itself. Besides, the court reprimanded the attorney, and instructed the jury not to be influenced by such remark.

The third bill of exceptions relates to the remarks of J. H. Turner, who represented the state, as private prosecutor, in closing the argument. The bill sets out that he made use of the following remarks: "Gentlemen of the Jury: There are many communities and counties where this negro would have already been mobbed, but the good people of this community have chosen to let the law take its course, and they expect...