Henard v. State

• Decision Date: 16 March 1904
• Citation: 79 S.W. 810
• Parties: HENARD v. STATE.
• Court: Texas Court of Criminal Appeals

79 S.W. 810

HENARD v. STATE.

Court of Criminal Appeals of Texas.

March 16, 1904.

Appeal from District Court, Cooke County; D. E. Barrett, Judge.

Arthur Henard was convicted of rape, and appeals. Reversed.

Culp & Giddings, for appellant. C. L. Potter, R. E. Thomason, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 25 years.

There are two bills of exception, which raise practically the same question. These relate to the proof of other acts of intercourse than that alleged in the indictment, and for which appellant was tried. When prosecutrix, Luna Wilson, was first placed on the stand, the state proved by her an act of intercourse occurring during the spring of 1903, about corn-planting time; and this was the transaction relied on by the state for the conviction. The state was then permitted to prove by said witness that on August 1st, some five or six weeks after the first occasion testified about, appellant came through an open window into her room at night, and had intercourse with her. The court explains the admission of this testimony by stating: That, when prosecutrix was first placed on the stand, she testified that no one save defendant had ever had intercourse with her. Afterwards the state placed Dr. Hewitt on the stand, and he testified that prosecutrix was about six months advanced in pregnancy at the time of the trial, which occurred on December 14, 1903. That this testimony of Dr. Hewitt as to the extent of her pregnancy, if the state was not permitted to show subsequent acts, would tend to discredit the testimony of Luna Wilson as to intercourse with defendant in the spring of 1903, and the court deemed the evidence complained of was competent, and admitted it. But when all the testimony on both sides was introduced, upon motion of the defendant, the court withdrew the consideration of said testimony from the jury. The state was further permitted to prove that on another occasion, between corn-planting time, in the spring, and the occasion in August, appellant slipped into her room at night and had intercourse with her. The court explains the admission of this testimony in the same manner as stated above. The state insists, in the first place, that this testimony was competent because of the facts stated in the explanation of the court, and because it tended to shed light on the transaction for which appellant was being tried. The state further contends that, if said testimony was not admissible, it was withdrawn by the court, and it was not of that injurious character which would affect appellant notwithstanding its withdrawal. Since the decisions of Smith v. State, 73 S. W. 401, 7 Tex. Ct. Rep. 343, 918, Barnett v. State, 73 S. W. 399, 7 Tex. Ct. Rep. 391, and Hackney v. State, 74 S. W. 554, 7 Tex. Ct. Rep. 890, it is the recognized doctrine in this state that other acts of intercourse are not admissible in a rape case unless such acts are made pertinent by some issue raised by the defense, or that such other acts tend to demonstrate or shed light upon the offense charged. Here we fail to perceive how said other two offenses proven served to shed any light upon the offense charged. Does the explanation made by the court suggest the admissibility of this evidence? It will be observed that the court states that the testimony was admitted for the purpose of corroborating or supporting the testimony of prosecutrix. The bill does not show that her evidence had been attacked. The fact that she stated she had never had intercourse with any other person than appellant, and that the physician subsequently testified for the state that her condition as to pregnancy indicated she must have had intercourse with some person at a time subsequent to that testified to by her originally, was not an attack upon her testimony—much less, an...