Hagood v. State
| Decision Date | 02 December 1925 |
| Docket Number | (No. 9489.) |
| Parties | HAGOOD v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
Eugene Hagood was convicted of rape, and he appeals. Reversed and remanded.
Stinson, Coombes & Brooks, of Abilene, and Lon A. Brooks, of Anson, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.
The offense is rape; punishment fixed at confinement in the penitentiary for a period of 10 years.
The subject of the rape was Esther Tabor, a girl under 15 years of age. Appellant visited the home of the prosecutrix, and she and her older sister went riding with the appellant in his automobile. After proceeding some distance, a young man by the name of Jones got into the car. It seems that Jones hid in the car until they had passed the home of the brother of the prosecutrix, after which he and the prosecutrix sat together on the back seat of the car. The car was stopped on a creek, and the parties took a walk along the bank of the creek. They afterwards got back in the car and went riding, during which the prosecutrix kissed the appellant. After dark, the car was stopped again. According to her testimony, she had intercourse with the appellant with her consent.
Appellant testified and denied that he had intercourse with the prosecutrix. It seems from the testimony that Jones, Lena Tabor, Esther Tabor, and the appellant spent the larger portion of the day and a part of the night together. According to Esther Tabor, she and the appellant had intercourse late in the afternoon, after dark. It was shown by the state's testimony, and by all the testimony, that during the afternoon the parties separated, and, while so separated, Lena Tabor and the appellant took a walk in company with each other. This was at a time when Jones and the prosecutrix, Esther Tabor, were walking in a different part of the woods.
Lena Tabor was permitted to testify as follows:
"While me and Hagood was there, and after we got out of the car and walked down the creek and out of sight of the car, and had remained down there a good while, Hagood tried to have intercourse with me, and he kept on, and I told him `No,' he couldn't; that I was not going to do any such thing."
Appropriate objections were urged against this testimony, and, from the bill of exceptions, it appears to have been improperly received. In qualifying the bill of exception to its admission in evidence, the trial judge said that at the time he admitted the testimony he was under the impression that the witness who gave the testimony was the prosecutrix in the case; that, when he went to prepare his charge, he discovered his mistake; that no mention had been made to strike out the testimony; and, that being doubtful as to its admissibility, he told the appellant's counsel that he would instruct the jury in his main charge...
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... ... Nevertheless, the Court observed that the error in admitting both statements "is one that cannot be cured. Haygood v. State, 104 Tex.Cr.R. 429, 284 S.W. 547 [ (1926) ]." ... Hagood (not, as miscited in Ulmer, Haygood ) presented a situation vastly different from that of Williams or the instant case. There the defendant was also charged with rape, and again testimony was allowed that defendant had also attempted intercourse with the complainant's sister. The trial judge ... ...
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