Graham v. State, 16308.

• Decision Date: 08 November 1933
• Docket Number: No. 16308.,16308.
• Citation: Graham v. State, 67 S.W.2d 296, 125 Tex.Cr.R. 210 (Tex. Crim. App. 1933)
• Parties: GRAHAM v. STATE.
• Court: Texas Court of Criminal Appeals

67 S.W.2d 296

GRAHAM v.STATE.

No. 16308.

Court of Criminal Appeals of Texas.

November 8, 1933.

State's Rehearing Denied January 24, 1934.

Commissioners' Decision.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

W. G. Graham was convicted of rape by force, and he appeals.

Reversed and remanded.

W. C. Morris, S. B. Ehrenwerth, and G. H. Cavanagh, all of Houston, for appellant.

K. C. Barkley, Cr. Dist. Atty., and Percy Foreman, Asst. Cr. Dist. Atty., both of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is rape by force; the punishment, confinement in the penitentiary for fifty years.

The testimony of prosecutrix, Elsie Wells, was, in substance, as follows: Two or three months prior to the assault she had accepted an invitation from appellant to ride to town with him in his automobile.Appellant stated to her that he was preparing to open a beauty parlor, and suggested that she might secure employment in that business.On the night of February 6, 1933, she went to the apartment of Miss Ruth Fayle with appellant and J. K. Cartwright.There all of the parties drank some whisky.Later, she(prosecutrix), appellant, and Cartwright drove away in Cartwright's automobile.She requested appellant to take her home, but he refused to comply and drove out on the road, where he stopped the car.After the car had stopped, she sat on the back seat with appellant.He assaulted her, and forced her to have sexual intercourse with him.Cartwright held her while appellant engaged in the act.Appellant beat her, and tore her clothing and undergarments.She fought to her utmost.She attempted to get out of the car, but appellant restrained her.After the act had been accomplished, appellant and his companion drove her back to town.At the first opportunity she left the car and went to a nearby residence, where she reported the matter to the occupants.The police were called, and appellant was immediately arrested.

Cartwright, testifying for the state, corroborated prosecutrix' testimony touching the assault made on her by appellant.He denied, however, that he held prosecutrix while appellant accomplished the act.He declared that he endeavored to force appellant to desist.

The proof on the part of the state showed that prosecutrix' clothes were badly torn; and that she was severely scratched and bruised.

Appellant testified that prosecutrix drove the car to the point where the alleged assault occurred.He said he was sitting on the back seat, and prosecutrix and Cartwright were on the front seat.He declared that they were all drinking whisky.He said that, while Cartwright and prosecutrix were on the front seat, prosecutrix had her legs on the steering wheel and Cartwright was fondling her person.He testified, in substance, that prosecutrix told Cartwright that she would be his girl; that Cartwright stated that he was too old to have sexual relations with her, and suggested that she get on the back seat with appellant; that she immediately got on the back seat with him, and began "fooling" with his clothes; that he had on a ring that belonged to his deceased brother; and she tried to take the ring; that she suggested that she might let his wife know about his presence with her; that he told her to keep her hands off of the ring; that she said: "You G___ d___ little b____d, you are just a cheap skate, that is all"; that upon making these remarks she scratched the blood out of his face; that he struck her two or three licks; that she viciously attacked him; that they continued to fight until a car came along.In short, appellant's testimony was to the effect that prosecutrix was the aggressor, and that her conduct was such as to invite both Cartwright and himself to have sexual intercourse with her.He said: "At no time did I have sexual intercourse with that girl.* * * I never did suggest anything of that kind.Such a thing never entered my mind until the suggestion was made—I never thought of such a thing.There was nothing but just a drunken fight and drunken brawl between me and this girl and Cartwright —that's all there was to it."

Eighteen bills of exception are brought forward, fifteen of which were prepared by the court upon his refusal to approve the bills presented to him by appellant's counsel.The first four or five of the bills prepared by the court relate to the refusal to permit appellant to ask prosecutrix on cross-examination as to specific acts of intercourse with various men in her apartment and in hotels.The bills recite that, if she had been permitted to answer, prosecutrix would have denied the acts.Bills of exception 8, 10, and 11, which were prepared by the court, relate to the court's refusal to permit appellant to prove by several witnesses that the general reputation of prosecutrix for chastity was bad.Bill of exception No. 6, which was also prepared by the court, is concerned with the court's action in refusing to permit a witness for appellant to testify that prosecutrix habitually spent the night in her apartment with various men.One of the witnesses would have testified that prosecutrix had undressed in his presence and had gone to bed with another man.

In offering the testimony shown in the bills of exception we have mentioned, appellant's counsel suggested to the court that such proof was offered in mitigation of the penalty, as affecting the credibility of prosecutrix as a witness, and to throw light on her immoral character.The state's objection was that such testimony was inadmissible because of the fact that appellant had denied the act, and hence that there was no issue as to consent.

It is well settled in this state that, when consent is an issue, the general bad reputation of the prosecutrix for chastity may be shown, as having a tendency to weaken the state's claim of nonconsent.Satterwhite v. State, 113 Tex. Cr. R. 659, 23 S.W. (2d) 356;Lawson v. State, 17 Tex. App. 292;Branch's Annotated Penal Code, p. 1003.Again, as bearing on the issue of consent, proof that the prosecutrix had had sexual intercourse with the accused on other occasions is admissible, but intercourse with other men cannot be properly received in evidence on this point.Satterwhite v. State, supra, and authorities cited.

There are exceptions to the rules to which we have adverted.Where such proof bears on a material issue, testimony may be competent that the prosecutrix had been carnally known by others than the accused.For example, where the woman states that the act of the accused caused her pregnancy, proof that she had been carnally known by others is admissible to destroy this claim.Branch's Annotated Penal Code, p. 1003;Satterwhite v. State, supra.So, when there is proof by the state that the private parts of the female show that she had been carnally used, the accused may show that such condition could have resulted from the acts of others.Branch's Annotated Penal Code, p. 1004;Satterwhite v. State, supra.So, when prosecutrix testifies that the act with the accused was her first and only act, and that it caused her great pain and injury to her health, proof that others had carnally known her is admissible.Stafford v. State(Tex. Cr. App.)285 S. W. 314.Again, when there is proof that prosecutrix, when upbraided for her intimacy with a certain person, threatens that, if there be further talk of it, she will lay it on the defendant, who is prosecuted, proof of acts of intercourse with others becomes admissible.Shoemaker v. State, 58 Tex. Cr. R. 518, 126 S. W. 887.

In the case of Lawson v. State, supra, it was urged that proof that the prosecutrix had had illicit carnal intercourse with other men should be admissible in mitigation of the punishment, if for no other reason.In passing on this contention, the court said: "We concede the force and apparent justice of the argument, and while in some of the States it has been adopted as the rule, still the great weight of authority, and the decisions in our own State, are the other way."The case of Calhoun v. State, 85 Tex. Cr. R. 496, 214 S. W. 335, 339, presented a situation in which this court expressed the opinion that there was error in excluding testimony that the prosecutrix, who was a white...