Hollingsworth v. State

• Decision Date: 16 June 1915
• Docket Number: (No. 3614.)
• Citation: 182 S.W. 465
• Parties: HOLLINGSWORTH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 465

182 S.W. 465

HOLLINGSWORTH v. STATE.

(No. 3614.)

Court of Criminal Appeals of Texas.

June 16, 1915.

On Motion for Rehearing, January 12, 1916.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

Alfred Hollingsworth was convicted of incest, and he appeals. Reversed and remanded.

Briefs of appellant on motion for rehearing, published in response to direction of Judge Harper contained in his opinion:

Preliminary Statement of Facts.

Aside from certain letters and correspondence hereinafter to be referred to, the incriminating evidence is confined within a brief compass. It was shown, among other things: That the prosecutrix, Cassie Dunn, lived at the residence of the appellant with her sister Fannie, and appellant's mother, who was an aged woman. That Cassie Dunn had practically no company and went out in a social way but very little. That appellant had an opportunity to have committed the offense, and probably the best opportunity of any one else, does not appear a matter of doubt under the evidence. It was also shown on the trial that some time in 1912 one Roy Hollingsworth, a cousin of the appellant, saw Cassie Dunn very early one morning sitting on the appellant's knee. This witness said that at the time he did not think anything unusual about this occurrence or attach any importance to it, but that, in the light of the charge against the appellant and Cassie's pregnancy, it afterward looked to him to be somewhat unusual. It was also shown by the testimony of one Oscar Easter that in the spring of 1914 he saw appellant and Cassie Dunn while engaged in an act of carnal intercourse. This was the evidence offered by the state and all the evidence offered by the state, except the letters and statements to be hereafter referred to.

Some of these statements, as, for instance, the statements of Cassie Dunn before the grand jury, were, if admissible at all, admissible only for the purpose of contradicting Cassie, and were not admissible as primary evidence of appellant's guilt. We shall undertake hereafter to demonstrate that sundry of the letters introduced in the evidence were wholly inadmissible, and that this was particularly true in respect to the purported letters of Cassie Dunn to appellant, in which, in substance, she ascribes the paternity of her child to him. Except for such letters, in view of the probable untruth of Easter's statements, it is inconceivable that any jury could or would have convicted appellant.

The offense charged was in terms denied by the prosecuting witness, Cassie Dunn, and by appellant, and strong evidence in other respects of appellant's innocence was shown on the trial. Nor should it be forgotten that appellant was a man 59 years old, that his wife had been dead for something like 20 years, and that his reputation was beyond question for chastity, for honesty, and fair dealing and as a truthful man. After the death of his wife, he remained true to her memory and never went to see any other woman, but sought to raise up the family born to them, and was, in every respect, above suspicion until the conspiracy in this case was filed to exact money from him and, failing to receive this, to send him to the penitentiary.

The able opinion of the learned Presiding Judge contains intrinsic evidence, to our mind, that it was to some extent based on the unauthorized and untrue statements in the explanation of the trial court to sundry bills of exceptions, wherein the trial court, without any evidence to sustain it, finds a conspiracy between Cassie Dunn and appellant.

We shall not undertake in this argument to discuss all the errors assigned, nor to make any reference to all the matters discussed in the court's opinion. We shall confine our argument to the presentation of only three or four questions, in the certain conviction that a careful examination, in the light of the authorities, must convince the court that a cruel injustice has been done this man, and that reason, law, and justice all demand that a rehearing should be granted in this case, that the judgment of conviction should be set aside, and the cause remanded for new trial.

I.

We assert without fear of contradiction that the application for a continuance should have been granted, and that the trial court was literally without the slightest excuse in failing to grant same. It will be remembered, and will be seen by reference to this motion for continuance, that the same was based and founded on the absence and for the lack of testimony of appellant's mother, Mrs. Cassie Hollingsworth, and Mrs. Lizzie Whitley and Mrs. Annie Ford, his daughters.

We are inclined to concede, if a rigid rule were to be applied, that under the circumstances appearing in the record the highest and strictest diligence would have required of appellant that he should have taken the depositions of his mother; but that the diligence with reference to the other witnesses was sufficient was not questioned in the trial court and has not been questioned in this court. Let us concede further that the trial court was correct in holding that the evidence expected to be given by these witnesses in respect to the visits of Cassie Dunn and Fannie Dunn to the house of Hazel Ford were shown so clearly beyond dispute as to not make this portion of evidence a matter of importance. It still remains, as we shall undertake to show, that the application was a good one; that the testimony which would have been given by these witnesses was not only admissible, but of the highest importance, and such as might, and probably would on a fair trial, have brought about appellant's acquittal.

Now, let us see: It is shown in the application that appellant was arrested on the 22d day of January, 1915, and that on the same day he caused a subpœna to be issued for these two witnesses. The case was called for trial on February 3, 1915, on the eleventh or twelfth day after his arrest. It was shown beyond any sort of dispute that the witness had been duly and properly served with subpœnas. It was shown beyond any question, and no issue was made on this, that they were both sick at the time the case was called for trial, and that it would have been impossible by any diligence known to the law or by any effort for the appellant to have secured their presence at the trial.

Clearly, the application was not made for delay. It is not a case where the prosecution had lingered through many months and years, and where a continuance was sought merely for wearing the state out and delaying the trial. It was the first application. The diligence was perfect. Would the testimony sought to be obtained through these witnesses have been admissible? As we shall show, this is not a matter of debate. Was it material? This we shall demonstrate. If the evidence sought by these witnesses was admissible, if it was material, then the fact that it was cumulative is no answer and would not justify the overruling of the application. That testimony is cumulative is no objection to a first application for continuance is no longer an open question in this state. Branch, Criminal Law, § 257, first paragraph. It has even been held that if the absent testimony is very important that a second application should be granted, though the absent testimony is somewhat cumulative. Gilcrease v. State, 33 Tex. Cr. R. 630, 28 S. W. 531.

The cases cited by the Assistant Attorney General, including that of Fulkerson v. State, 57 Tex. Cr. R. 80, 121 S. W. 1111, were cases where a second application for a continuance was being considered.

Now, let us see what the statements were as to the evidence expected to be adduced through Mrs. Whitley and Mrs. Ford. As to Mrs. Whitley, we find the following statement taken literally from the application for continuance (transcript, page 11):

"By the witness Mrs. Lizzie Whitley defendant expected to prove that witness is defendant's youngest daughter, who was about four years old at the time of her mother's death, and who lived with defendant until she was about 19 years of age, and kept house for him during the latter years that she lived with him; that witness, after her marriage, frequently visited the home of the defendant, and had been there often since Cassie Dunn has been living in the home of defendant; that witness has observed the conduct and demeanor of the defendant toward Cassie Dunn and of Cassie Dunn toward the defendant, and that the conduct and demeanor of each toward the other had been circumspect and above criticism, and that she never saw any undue familiarity on the part of either toward the other, and that the defendant treated Cassie Dunn with the same consideration as he does his own children, and treated her as a daughter."

It is further stated in the motion for continuance (transcript, page 12) that appellant expected to prove by his daughter Annie Ford:

"That witness frequently visited the home of defendant during the time Cassie Dunn lived with him, and had occasion to observe the conduct of the defendant toward Cassie Dunn, and that it was circumspect and above reproach, and that defendant was never unduly familiar with Cassie Dunn at any time within the knowledge of the witness."

The testimony of the appellant's mother along these same lines would have been to the same effect. The record will show that testimony of this same general character was introduced by appellant through Mrs. Roy Hollingsworth (statement of facts, page 59), and there seems to have been no objection to it, as indeed there could have been no good objection to it.

In his explanation to this bill of exceptions, the trial court, in speaking of this particular evidence sought by appellant, makes this statement:

"I desire to make this observation with reference to the testimony, not only of Mrs. Whitley and Mrs. Ford, but to the testimony of Mrs. Cassie Hollingsworth as well: It was never the contention of the state that defendant has been guilty of any...