Hackney v. State

• Decision Date: 13 May 1903
• Citation: 74 S.W. 554
• Parties: HACKNEY v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W. 554

HACKNEY v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1903.

Appeal from District Court, Bosque County; Wm. Poindexter, Judge.

Walter Hackney was convicted of rape, and appeals. Reversed.

Lockett & Cureton and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the offense of rape on his little girl, about 11 years of age, and his punishment assessed at confinement in the penitentiary for a term of five years.

Appellant contends that the venue of this offense was not in Bosque county, it having occurred on the other side of the Brazos river, and in either Johnson or Somervell county; the insistence being that article 228, Code Cr. Proc. 1895, does not apply, authorizing prosecutions within 400 yards of the county line, when a river constitutes such county line. If the offense occurred in Johnson county, there is no question but that this prosecution could be maintained in either Bosque or Johnson county; being a rape case, and said two counties being in the same judicial district. There is proof in the record to the effect that the offense actually occurred in Johnson county. See Acts Sp. Sess. Leg. 1897, p. 16, c. 9; Mischer, alias Blacknird, v. State, 41 Tex. Cr. R. 212, 53 S. W. 627. We are not aware that the question of venue has ever been decided, with reference to a construction of article 228, Code Cr. Proc. 1895, where a river constitutes the dividing line between two counties. Evidently said article is comprehensive enough to authorize jurisdiction where the locus of an offense is within 400 yards of the line of the county where the prosecution is begun, although a river may be the dividing line between the two counties. Nor do we find anything in article 234, Code Cr. Proc. 1895, which militates against this construction. That article merely regulates the venue, as we understand it, where an offense is committed in the river itself. Accordingly we hold that the court did not err in holding that the prosecution could be maintained in Bosque county.

Appellant complains that the court committed error in refusing to permit prosecutrix to testify what she knew in regard to a certain picture—presumably, that of her mother. From the explanation given by the judge as to this bill of exceptions, it appears that this witness was permitted to testify all that she knew of her own knowledge about said picture. Of course, she was not authorized to give in any hearsay evidence on this subject. It was competent for her to state only what she knew, and this would involve any conversation which she may have heard between her mother and Kellough or between her father and mother in regard to said picture.

Appellant also reserved an exception to the refusal of the court to permit him to testify as to certain conversations between himself and his wife in regard to Kellough, and the conduct of appellant's wife and said Kellough. He insisted that this testimony was competent on the ground of an alleged conspiracy, as claimed by the state, existing between his wife and said Kellough to get rid of him by sending him to the penitentiary. There is some testimony in the record suggesting a course of conduct between the wife of appellant and said Kellough which would indicate illicit connection between them, but it occurs to us that this evidence would have to go further, and show some bearing or some effort on their part to fabricate testimony against appellant. We have examined this record to see if there was such testimony, and fail to discover any. We do not find in the record any evidence or endeavor on the part of either Kellough or appellant's wife to induce prosecutrix to testify against her father. The only testimony of prosecutrix which would tend in the remotest degree in that direction is to the effect that she says she told her mother about what her father had been doing to her, and she had him placed in jail at Cleburne "right straight"; that she thought she had him placed in jail about a week after she told her. But it does not occur to us that this testimony sufficiently shows any effort or design on the part of the wife of appellant or of Kellough to induce prosecutrix to swear falsely against him. Consequently we do not believe the testimony was admissible.

Appellant assigns as error the action of the court in permitting certain witnesses to testify on behalf of the prosecution to the effect that the general reputation of appellant's wife in the community where she lived, for being a virtuous, upright, and moral woman, was good. This evidence was objected to on the ground that it was not in rebuttal of any evidence on the part of defendant, and that it sought to introduce the character of the wife as a circumstance against defendant. The court explains this bill by showing that defendant...