Guinn v. State
| Citation | 65 S.W. 376 |
| Parties | GUINN v. STATE. |
| Decision Date | 20 November 1901 |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from Madison county court; C. E. Gustavus, Judge.
H. T. Guinn was convicted of adultery, and he appeals. Reversed.
M. Y. Randolph, A. D. Gregg, J. M. Brownlee, Duncan & Jones, and Butler, Lasseter & Butler, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of adultery, and his punishment assessed at a fine of $100.
After the impanelment of the jury, the county attorney, discovering the information was defective, in open court filed a proper motion to dismiss the information on the grounds that in the first count it is not alleged that the said H. T. Guinn is not lawfully married to the said Anna Sperlin, and in the second count thereof it is not alleged that the said H. T. Guinn and Anna Sperlin had habitual carnal intercourse. Upon the hearing of this motion the court sustained the same, discharged the jury, and permitted the county attorney to file a correct information. Appellant objected to this proceeding, and when the cause was again called he interposed his plea of jeopardy, based on the foregoing facts, which the court properly instructed the jury to disregard. The appellant cannot complain because prosecution against him is dismissed, before acquittal, where the prosecution is predicated upon a defective information or indictment. Jackson v. State, 37 Tex. Cr. R. 128, 38 S. W. 1002. While the original information was defective, the one under which appellant was convicted in this case, as contained in the transcript, is correct in substance and in form.
By bill of exceptions No. 8, it is made to appear the court permitted the state to prove by Sallie Green that she was in Anna Sperlin's room one night last fall, and while she and Anna were on the bed some one came in the room and up to the bed, and told Anna to move over. It was dark in the room, and witness could not tell who it was; but before the man got to the bed she asked Anna who it was, and she said in a very low tone—in a whisper like—that it was defendant, Guinn. Witness does not think he could have heard what she said, as he had not gotten to the bed. Anna spoke as if she did not want the person to hear, and witness is almost certain he did not hear what was said. That witness then got up, and went home, and left them in the room. The prosecution is predicated upon the adultery of appellant with Anna Sperlin. Appellant objected to said testimony, because the person who came into the room was not identified to be defendant, and what was said by Anna Sperlin to Sallie Green was not shown to be in the hearing of the man who came in the room; and it was the purpose of Anna Sperlin to speak so the man could not hear; that said testimony is irrelevant, hearsay, injurious to defendant, and was not admissible for any purpose. The testimony was clearly hearsay, and the bill shows to a reasonable certainty that the person in the room did not hear what Anna Sperlin said, and it was error for the court to admit it.
Bill No. 14 complains that the court permitted Beula McDonald and other witnesses to testify that they had seen defendant and the said Anna Sperlin riding together in a buggy; had seen them together at parties; had seen Anna Sperlin get drunk and fall in defendant's lap at the party; had seen them go home together, in company with others, some of whom were white people, from negro parties; and said Beula McDonald had seen defendant and Anna leave his house together in a buggy in the daytime, but did not know where they were going. And by other witnesses the state was permitted to prove they had seen defendant walk off from his house in the daytime, followed by Anna Sperlin, going to a negro's house, almost in sight of defendant's house; and the negro woman living there and Anna Sperlin got into a row; that defendant and Anna Sperlin had to pay a fine for disturbing the peace, etc. And by others the state proved that in Wooley's pasture, three or four miles from defendant's house, by the side of the road, a hat and coat were found, which witnesses thought belonged to defendant; that where said garments were found the appearance was as if some one had been wallowing on the ground. It is permissible to show the association of appellant with Anna Sperlin. It is permissible to show the character of the association, and the intimacy that existed between them, as a circumstance going to establish the allegations of the information. Clearly, it is not permissible to prove that appellant and Anna Sperlin, or Anna Sperlin, had a row...
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Sutton v. State
...446, 46 S. E. 634; Gossett v. State, 123 Ga. 431, 437, 51 S. E. 394 (4). A contrary rule is held in Texas (Guinn v. State [Tex. Cr. App.] 65 S. W. 376). In the case at bar it was shown that on several occasions the defendant visited the house where Annie Ethridge lived, and that he had once......
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Sutton v. State
... ... 97, 13 N.E. 345; 2 Gr. Ev. (16th ... Ed.) § 44; Starke v. State, 97 Ga. 193, 23 S.E. 832; ... Eldrige v. State, 97 Ga. 192, 23 S.E. 832; ... Johnson v. State, 119 Ga. 446, 46 S.E. 634; ... Gossett v. State, 123 Ga. 431, 437, 51 S.E. 394 (4) ... A contrary rule is held in Texas (Guinn v. State [Tex ... Cr. App.] 65 S.W. 376). In the case at bar it was shown ... that on several occasions the defendant visited the house ... where Annie Ethridge lived, and that he had once or twice ... been seen in bed with her after dark; he being a married man ... and she a single woman ... ...
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