French v. State.

• Decision Date: 08 February 1905
• Citation: 85 S.W. 4
• Parties: FRENCH v. STATE.
• Court: Texas Court of Criminal Appeals

85 S.W. 4

FRENCH v. STATE.

Court of Criminal Appeals of Texas.

February 8, 1905.

Appeal from Palo Pinto County Court; W. E. McConnell, Judge.

J. S. French was convicted of adultery, and appeals. Reversed.

J. H. Bowman and H. E. Bradford, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of adultery, and his punishment assessed at a fine of $100; hence this appeal.

Appellant excepted to the evidence of conduct between appellant and his alleged paramour, occurring some four or five years before the commission of the offense charged against appellant, claiming that the same was too remote, and constituted no part of the offense; and in support of this contention refers us to Cyc. L. & P. p. 962, and notes citing cases; and People v. Hendrickson, 53 Mich. 525, 19 N. W. 169; People v. Davis, 52 Mich. 569, 18 N. W. 362. The Michigan cases appear to sustain appellant's contention. We find, however, that the note in Cyc. refers to other cases, in which it is said that acts tending to show adulterous action anterior to the statute of limitations are admissible in support of evidence of the commission of the act charged. And in Com. v. Morris, 1 Cush. (Mass.) 391, it is said: "The exact date of the acts sought to be proved was in doubt. It was held, however, that the evidence was admissible, and that the nearness of the time was a circumstance affecting the effect of the evidence, and not its competency." Of course, all evidence of continuous acts of intercourse within the statute of limitations may be provable as constituting a part of the offense. But here the question is different. The rule in this state was that former acts of illicit intercourse could be proven, not only in incest and adultery, but in rape, in order to shed light on the offense charged. Burnett v. State, 32 Tex. Cr. R. 87, 22 S. W. 47; Funderburg v. State, 23 Tex. App. 392, 5 S. W. 244. But this doctrine as to rape has been overruled. Smith v. State, 73 S. W. 401, 7 Tex. Ct. Rep. 343; Id., 74 S. W. 556, 7 Tex. Ct. Rep. 918. It has also been overruled as to incest. Clifton v. State (Tex. Cr. App.) 79 S. W. 824. We can see no distinction as to this matter between incest and adultery. However, these authorities are limited as to other acts of carnal intercourse. In Henard v. State, 82 S. W. 655, 11 Tex. Ct. Rep. 191, it was held that acts of intimacy falling short of carnal intercourse were admissible in rape cases. And we can see no reason why the same principle should not be extended to incest and adultery. We therefore hold that former acts of intimacy short of carnal intercourse of recent date may be proven in such cases. But appellant raises the question of remoteness as to the acts of familiarity proven here antedating the offense some four or five years. We hold that said acts of intimacy are too remote. There was ample time for the parties to have reformed or to have become estranged. This is in accord with the doctrine announced in Bowers v. State, 71 S. W. 284.

Appellant made a motion for new trial, based on newly discovered evidence, which consisted of the testimony of Mrs. Anna Jones, the daughter-in-law of appellant's alleged paramour, and of Mrs. Sallie Jones, the alleged paramour. We think the showing of diligence as to Mrs. Anna Jones was sufficient. It occurs to us that her testimony was upon a material point in the case. The state developed on the trial four acts of...