Hilton v. State

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtHenderson
Citation53 S.W. 113
Decision Date25 October 1899

Appeal from Erath county court; L. N. Frank, Judge.

M. A. Hilton, convicted of adultery, appeals. Reversed.

Daniel & Keith, for appellant. W. J. & Eli Oxford and Robt. A. John, Asst. Atty. Gen., for the State.


Appellant was convicted of adultery, and his punishment assessed at a fine of $500, and prosecutes this appeal.

Appellant's first bill of exceptions calls in question the action of the court in admitting the testimony of Mrs. Zora Johnson. The bill shows that this witness was introduced by the state for the purpose of rebuttal, to sustain the testimony of Josie Johnson, after the defendant had impeached her by showing that she had made a statement to J. W. Jarrott different from her testimony on the trial. There was no objection to the impeaching testimony by the witness Mrs. Zora Johnson, except that the defendant objected to her giving any time, date, or year as to the alleged acts of intercourse; claiming that the witness Jarrott had not testified during his examination as a witness to any time, date, or year that the said Josie Johnson stated that the acts of carnal intercourse occurred. By reference to the bill of exceptions, it will be observed that the court does not certify that the witness Jarrott had not stated that the witness Josie Johnson, in stating the matter to him, gave no dates. If we look to the answer of the witness, she gave no date, further than that the three acts of carnal intercourse which Josie Johnson related were, according to her statement, had within the last two years. We do not believe the exceptions taken to this matter are meritorious.

Appellant objected to a number of charges given by the court, and to the refusal of the court to give certain requested instructions. Among others, he took an exception to the action of the court in the instruction defining who were accomplices. The language of the instruction on this subject, objected to, is as follows: "All persons are accomplices who participate in the commission of an offense as a principal, as before defined." Principals were defined to be "all persons who are guilty of acting together in the commission of an offense." In our opinion, this charge sufficiently covered the question of accomplices, as applied to this case. Josie Johnson, the alleged accomplice, was only an accomplice as a principal participant in the offense.

Appellant also objected to the court submitting the question to the jury as to whether or not Josie Johnson was an accomplice. Of course, there could be no question that she was an accomplice; she being a participant in the offense as a principal. While in such case it would have been proper for the court to have instructed the jury that Josie Johnson was an accomplice, still we see no harm in the court submitting this question to the jury. The jury were bound to regard her as an accomplice, and, unless her testimony was otherwise corroborated, they would not have been authorized to find a verdict against defendant. This, however, presents another question.

Appellant objected to the following charge of the court in regard to the witness Josie Johnson: "Evidence, if any, tending to show that defendant had carnal intercourse with Josie Johnson, in Bosque county, in the fall of 1895, was admitted in corroboration of the state's witness Josie Johnson, if it does corroborate her, and may be considered by you for that purpose alone." For the purpose of counteracting the effect of this charge, appellant, as he contends, asked special instructions Nos. 2 and 3, which are as follows: "(2) You are instructed that you cannot consider the evidence of the witness Josie Johnson as to any act of carnal intercourse had with defendant in Bosque county, but you can only consider her testimony as to acts of carnal intercourse in Erath county. (3) You are instructed that the testimony of Josie Johnson as to act of carnal intercourse with defendant in Bosque county cannot be considered by you as corroboration of her testimony, or for any other purpose, in this case." The court refused these charges. Under the peculiar facts of this case, we do not believe the court should have given the charge objected to. Certainly, if it did, special instruction No. 3 asked by appellant should have been given. The indictment alleged the offense to have been committed in Erath county, and the prosecution was in said county. The state's case mainly depended on the testimony of Josie Johnson as to acts of carnal intercourse. While the state proved by Josie Johnson an act of carnal intercourse in Bosque county (no objection being urged against the admissibility of same), under the court's instruction the jury were authorized to look to this act of carnal intercourse in Bosque county, proved by her, as corroborative of her testimony as to the acts of carnal intercourse in Erath county, and so to corroborate her by her own testimony. So viewed, we cannot but regard the instruction of the court...

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17 cases
  • Redman v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 1, 1911
    ... ... This court has repeatedly held that evidence as to resemblance on part of ... Page 687 ... an infant to the accused defendant is not admissible. Barnes v. State, 37 Tex. Cr. R. 320, 39 S. W. 684; Kilpatrick v. State, 39 Tex. Cr. R. 11, 44 S. W. 830; Hilton v. State, 41 Tex. Cr. R. 190, 53 S. W. 113; Gray v. State, 43 Tex. Cr. R. 300, 65 S. W. 375. The Barnes Case was for seduction, the Kilpatrick Case was for incest, the Hilton Case was for adultery, and the Gray Case was a prosecution for rape. To the same effect are Hanawalt v. State, 64 Wis. 84, ... ...
  • Staples v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 3, 1915
    ... ... One act of intercourse would not authorize a conviction under such an information — the state was required to show that it was a habit of appellant to have intercourse with the female whenever suitable opportunity was afforded. As said in Hilton v. State, 41 Tex. Cr. R. 193, 53 S. W. 113, an occasional act is not sufficient to show "habitual" intercourse, much less one act. Under the testimony of Miss Roberson there could be no doubt of appellant committing the offense of seduction, and, under the testimony of both Miss Roberson and ... ...
  • Phillips v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 24, 1942
    ... ... Zollicoffer v. State, 16 Tex.App. [312], 317; Dill v. State [Tex.Cr.App.] 28 S.W. 950; Hankins v. State [Tex.Cr.App.] 47 S.W. [992], 993; Ransom v. State [Tex.Cr.App.] 49 S. W. 582; Hilton v. State, 41 Tex.Cr.Rep. [190], 191, 53 S.W. 113; Carroll v. State [Tex.Cr.App.] 62 S.W. 1061; Moore v. State, 47 Tex.Cr.R. [410], 414, 83 S.W. 1117; Pace v. State, 58 Tex.Cr.R. [90], 96, 124 S.W. 949; Vails v. State, 59 Tex. Cr.R. [340], 342, 128 S.W. 1117; Pace v. State [69 Tex.Cr.R. 27], 153 ... ...
  • Lester v. Sampson
    • United States
    • Missouri Court of Appeals
    • November 18, 1915
    ... ... Another witness said he had seen Lester drunk a number of times; that he gets pretty bad; that he could not state how frequently, but it is at intervals right along. Another testified that he had seen him drinking on an average of once a week for two years ... W. 503. "Habitual" means formed or acquired by or resulting from habit, frequent use or custom; formed by repeated impressions. Hilton v. State, 41 Tex. Cr. R. 190, 53 S. W. 113. Webster defines "habitual" as customary; accustomed; usual; common; regular. In State v. Robinson, 111 ... ...
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