Hinman v. State

• Decision Date: 09 March 1910
• Parties: HINMAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 221

127 S.W. 221

HINMAN v. STATE.

Court of Criminal Appeals of Texas.

March 9, 1910.

Rehearing Denied April 13, 1910.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Owen Hinman was convicted of crime, and he appeals. Affirmed.

Scott & Brelsford and T. L. Hutchinson, for appellant. John A. Mobley, Asst. Atty. Gen., and Stubblefield & Patterson, for the State.

RAMSEY, J.

On the 12th day of July, 1907, an indictment was returned into the district court of Eastland county charging appellant with seducing one Lela Barefield on or about the 15th day of March, 1906. When the case was called for trial on the 9th day of August, 1907, appellant made application for a continuance on account of the absence and for want of the testimony of Mull Wallace, Clarence Withers, and Mrs. M. F. Ames. This motion was not at the time acted upon, but the cause was postponed by the court of its own motion until the 19th day of August thereafter, when it was again called, when appellant renewed his motion for want of the testimony of the same witnesses with some additional statements of diligence used by him since the original presentation of his application to continue. The facts expected to be proved, in respect to the witnesses Wallace and Withers, are thus stated: "That said witnesses had had sexual intercourse with the prosecuting witness herein, Lela Barefield, prior to the time of the alleged seduction in this case on the part of the defendant." By the witness Mrs. M. F. Ames it was expected to prove that "the witness Mull Wallace, prior to and after the time of the alleged seduction in this case, was frequently in the society and company of the prosecutrix, and was frequently in the society of said prosecutrix under such circumstances as to afford opportunity for illicit relations between them, and conducted herself with such witness Mull Wallace in such a way as to indicate familiarity and improper intimacy with said Mull Wallace." At a trial had in said court on the 19th day of August, 1907, appellant was found guilty, and his punishment assessed at confinement in the penitentiary for a period of two years. There are a number of questions raised on the appeal, the more important of which we will now discuss.

1. When appellant's application for a continuance was filed, it was sought to be controverted by the state on the ground that none of the witnesses, if present, would testify to the facts stated, and that the facts therein stated were probably untrue. After the trial, and before the motion for new trial was acted upon, the witness Wallace appeared and made an affidavit, in substance, to the effect that he had never at any time had carnal intercourse with Lela Barefield, and had never at any time been in a compromising position with her, and had never at any time told any one that he had any improper relations with her, and had never at any time kept company with said Lela Barefield. This affidavit, of course, disposes of the application for continuance as to the testimony of this witness. We think, to, that the facts expected to be proved by Mrs. Ames are so generally stated as that the application might well have been disregarded. The facts to which she would testify are not stated; indeed, no fact is stated which it is expected could be proved by her, except she was frequently in the society of prosecutrix, and that she conducted herself with the said Wallace in such way as to indicate undue familiarity and improper intimacy. What this conduct is the application does not state. Even in the absence of Wallace's affidavit denying any association at all with prosecutrix, we should not hesitate to hold that the application, in so far as it rested on Mrs. Ames' testimony, is wholly insufficient. Nor do we think that the facts stated in respect to the testimony of the witness Withers are sufficient. The allegation here is nothing like so specific as that held insufficient in the case of Snodgrass v. State, 36 Tex. Cr. R. 210, 36 S. W. 477. There the allegation was that Snodgrass expected to prove by the witnesses named that within a year of the time, and before it is alleged in the indictment that the defendant seduced the prosecutrix, the witness had had sexual intercourse with the prosecutrix in Jack county, Tex. The application here contains a very general statement that at some time prior to the alleged seduction, whether one year or five is not stated, and at some place, state or country not given, the witness Withers had had intercourse with the prosecutrix. Judge Davidson, in the case of Merrell v. State, 70 S. W. 980, thus correctly and aptly states the rule: "Averments as to what a party charged with crime expected to prove by absent witness must be specifically alleged. General averments will not do. It will be observed that appellant carefully avoided stating the time, place, circumstance, or any matter connected with the undue liberties Howard should have had with Nora Livingstone. It has been stated by some of the decisions that an allegation with reference to absent evidence must be so particularly stated that it could form the basis of a charge of perjury." Again, when we look to the evidence in the case, it is so demonstrably clear to our minds that the witness Withers, if present, would not have testified to the intercourse alleged, and that if he had done so it would have been probably untrue.

2. We think there is no merit in the contention or claim of appellant that the court erred in permitting the witness Lela Barefield to testify that she and defendant had other acts of intercourse after the time the seduction is claimed in explanation of the fact of her testimony that an infant was born to her on the 7th of March, 1907. Her testimony is to the effect, in substance, that the first act of intercourse occurred the last of April or first of May, 1906. She also testified the baby was born on the 7th of March, 1907, and that she had never had intercourse with any other man than appellant. In explanation of her testimony as to the birth of the child, the other acts of intercourse with appellant were admissible.

3. Nor is there any merit in the contention of appellant that the following question propounded by counsel for the state was leading and constitutes reversible error, "Would you have yielded to the sexual embraces of defendant, had he not promised to marry you?" to which the witness answered, "No, sir." Almost this precise question was held to be not reversible error in the case of Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477, which rule has been followed by this court in the recent case of Carter v. State (decided at the present term) 127 S. W. 215.

4. It is claimed that the court erred in permitting the witness Mills Davenport to testify to statements made by appellant, in substance, to the effect that he was the cause of Miss Barefield being in a pregnant condition, and also a statement to Davenport to the effect, in substance, that he contemplated stealing a girl and invoked his assistance. These statements, we believe, were admissible on the issue: First, that appellant had had carnal intercourse with the prosecutrix; and, second, for the purpose of corroborating the prosecutrix on the issue of their engagement. Davenport testified that some time in the spring of 1906 appellant, in a conversation with him, stated that he was expecting to...