Hamilton v. State

• Decision Date: 15 January 1913
• Citation: 153 S.W. 331
• Parties: HAMILTON v. STATE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

153 S.W. 331

HAMILTON v. STATE.^†

Court of Criminal Appeals of Texas.

January 15, 1913.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

E. B. Hamilton was convicted of incest, and he appeals. Reversed and remanded.

J. G. Matthews and Neyland & Neyland, all of Greenville, for appellant. C. A. Sweeton and C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant and Annie Wood were charged with incest, and appellant given two years and a half in the penitentiary.

The case is peculiar in several respects. Appellant was about 63 or 64 years of age, living in the country about four miles from the city of Greenville, in Hunt county. He employed the mother of Annie Wood as a sort of housekeeper, and she and Annie Wood and a son and another daughter, a married woman, or widow, took up their abode at the residence of appellant. After the mother of Annie Wood had been at the place awhile, she stated to appellant one day that living in the house with him and occupying it as she and her children were might cause comment, and it would be better that they should marry. After talking over the matter an amicable arrangement was reached, and they went to town and were married. They went that night to a hotel in Greenville, and about 11 o'clock retired to their room. Appellant's newly married wife commented on the fact that there was but one bed in the room. He suggested in reply that it was not necessary that there be two beds for a man and his wife, that one was sufficient. She then informed him she had a statement to make to him, which she proceeded to do, in regard to her physical condition, and, to sustain her statement, exhibited her person so as to discover to appellant the fact that she was badly diseased; from her waist practically down to her feet being covered with sores. This outraged appellant very much, and therefore they did not assume the relation of husband and wife so far as having intercourse was concerned. He sent her away to Corpus Christi for the purpose of curing her, if it could be accomplished. Annie Wood remained in the house after her mother had gone as housekeeper, and it was during this time or period that the incestuous intercourse is alleged to have occurred. Appellant and Annie Wood were arrested on the charge of adultery, and later the accusation was changed to incest. They employed J. G. Matthews, Esq., an attorney of the Greenville bar, to defend them, and also to bring civil suits for damages against parties interested in the prosecution. They were incarcerated in jail, bond was fixed at $1,500 in the incest case, and Mr. Matthews prepared a bond for each in that amount. Appellant readily gave bond. Mr. Matthews secured signatures for bond of Annie Wood, and carried it to the jail where she was in custody with a view of having her sign it. The officer refused to let Mr. Matthews see his client, but, as Mr. Matthews says, "kindly" agreed to take the bond, and have Annie sign it. She signed it. The officer declined, however, to turn her out after giving the bond, on the ground that the grand jury was going to indict her in another case. It seems they had not at that time done so. The evidence indicates that, in fact, they did subsequently indict her in another case of incest with the defendant. Mr. Matthews undertook to see Annie Wood and confer with her, but the officer declined to let him see or talk with her. Mr. Matthews then filed a motion to compel the sheriff to allow him access to his client, Annie Wood, setting out the fact, first, that Annie Wood had been charged by some character of affidavit filed about the 13th of October, 1911, and bond furnished her by the sheriff for her to sign and that on the 13th day of October, 1911, her said attorney, J. G. Matthews, went to the jail to get her signature to said bond, but the jailer refused him admittance, stating that he had orders from the grand jury not to allow any one to talk to her; that he was refused admittance to the place where she was confined; that about 10 or 12 days ago the grand jury presented an indictment charging her with incest, and on the 18th or 19th of the same month Mr. Matthews carried her bond to the jail to get her signature, "and the sheriff or jailer in charge again `kindly' consented to go and get the signature of said Annie Wood to said bond, but refused to allow her said attorney (Matthews) to see her, but that said attorney without antagonizing the said sheriff's force or the jailer took the bond, and obtained signatures of two good and solvent sureties, and presented the same to the sheriff, and the said sheriff held said bond for a considerable length of time, but refused to liberate the defendant, and waited patiently for the grand jury to present another bill in a different case, and then approved and filed the bond among the papers of the case, said bond being fixed by the court at $1,500; that the bonds fixed by this court against the said Annie Wood charged with the offense of incest in the two cases amount to the sum of $3,000, which she will not be able to make, and the only way that this attorney can do to have the assistance of the said Annie Wood, defendant, in shaping up her defense is for him to have access to his client on the inside of the jail or have her brought to some place of safety where she can have the privilege of consulting with her attorney in shaping up process, and preparing her defense." This motion wound up with a prayer that the sheriff be directed to bring his client to his office, or some other office with directions to the sheriff that she be permitted to have a private talk with her attorney without the hearing of any one except herself and her attorney. This motion was presented to Hon. T. D. Montrose, who was presiding over the court in the absence of the regular judge, Hon. R. L. Porter, and that said District Judge Montrose still presiding on the 24th of October, 1911, had Annie Wood brought into open court, the said Annie Wood not being brought until after the motion had been read. The court then placed the said Annie Wood on the witness stand, and stated to her attorney that he might proceed, and the said Annie Wood, being interrogated, stated that she did not have an attorney, that she would like to have one, and that she had asked the jailer to go and see J. G. Matthews as he had been representing her before she was put in jail, and that, if he was not going to represent her, for him to see B. Q. Evans, but that she never received any report from the message, and the district attorney then asked her if she had testified before the grand jury under an agreement that she would not be prosecuted, and the defendant stated that she had told the truth, and the district attorney then stated that they were not going to prosecute defendant, but were holding her as a witness, and counsel for E. B. Hamilton then asked the court that if she was a witness against his client, her codefendant, he be permitted to have a private talk in order to shape up the defense of his client, and this the court refused, stating that he might as well turn her over to Mr. Hamilton (this defendant), and said attorney then and there objected, etc. This bill is signed by the judge.

Another bill in this connection shows that Annie Wood was brought into court by the sheriff on Wednesday evening after the witness had been sent back to jail on Monday and also Tuesday, and the jury held from the time they were impaneled, Monday morning, until Wednesday afternoon, waiting for the witness to testify as to whether or not the defendant had had intercourse with her. The defendant objected to the testimony of said witness upon the following grounds: First, that she stands charged by indictment with the same offense as the codefendant with this defendant on trial; second, because said witness has twice previous to this been put on the stand at the instance of the state, and failed to testify as to the matters sought to be proved by her as a witness for the state, and remanded to the custody of the sheriff and compelled to remain in the sheriff's custody under the order of the court, since the beginning of this case; third, that the conduct of the court in remanding said witness to the sheriff and keeping the jury in the hands of the constable and officers is of such a character as is likely to intimidate the witness and cause her to give testimony against herself and against the defendant. The court overruled the objection, defendant excepted, and the witness then proceeded to answer in response to the questions; the questions and answers being here given: "Q. At the time that you and your stepfather lived together there out there (Mr. Hamilton), did he have carnal intercourse with you? A. Witness nodded her head, signifying, `Yes.' Q. You answer that he did? A. Yes, sir. Q. When was the last time that he had intercourse with you? A. About the 10th of September. Q. This last September? A. Yes, sir." Cross-examined: "I lived at Mr. Hamilton's about three months. Q. You said he had intercourse with you, * * * carnal knowledge of you? Do you know what intercourse means? A. Witness shook her head signifying, `No.' Q. Did he deal with you like he would, he would if he had been your husband? A. I done just as he would if a wife or unmarried people. Q. Did he ever get on top of you? A. Witness shook her head, signifying, `No.' Q. Never did—did he ever get between your legs? A. That is the way they have got it down. Q. You say that is the way they have got it down; but I want to know the truth. A. He done it sideways. He stuck his privates in mine only twice. I have been in jail there for the last three weeks, by myself most of the time. I have never talked with anybody about this case, and was never allowed to talk with anybody about it. Q. Did you ever try to get anybody to go and get you a lawyer? A. Yes, sir." Witness proceeds: "I have been confined there about 25 or 26...