Jaffe v. Deckard

• Decision Date: 19 March 1924
• Docket Number: (No. 2283.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 261 S.W. 390
• Parties: JAFFE v. DECKARD.
• Court: Texas Court of Appeals

261 S.W. 390

JAFFE v. DECKARD.

(No. 2283.)^*

Court of Civil Appeals of Texas. Amarillo.

March 19, 1924.

Rehearing Denied April 23, 1924.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by Katie Mae Deckard against Harry Jaffe. Judgment for plaintiff, and defendant appeals. Affirmed.

P. B. Cox and Bullington, Boone, Humphrey & Hoffman, all of Wichita Falls, for appellant.

Martin & Oneal and J. V. Allred, all of Wichita Falls, for appellee.

HALL, C. J.

This suit was filed March 13, 1922, by Katie Mae Deckard, a minor, by next friend, against appellant, Harry Jaffe, for damages resulting from an alleged criminal assault upon her. She alleged that she was under the age of 15 at the time of the filing of the suit and at the time she was raped by appellant; that the assault was committed upon her by force and violence on or about the 1st of June A. D. 1921; that to accomplish his purpose the appellant seized her by the throat and choked her, and used other personal violence upon her; that as a result of said assault upon her and carnal knowledge of her she became pregnant, and on the 27th day of February, A. D. 1922, gave birth to a baby; that this baby was the result of the appellant having carnal intercourse with her, and that appellant was the father of the baby; that by reason of this assault upon her she suffered physical pain and mental anguish, and by reason of her being pregnant and giving birth to the child she suffered physical and bodily pain; that it was necessary to operate upon her in delivering the child; that she was a negro girl, and that the child was of fair complexion, and by reason of that fact people who saw her with the child would know that the father of the child was of the white race, and that the child was illegitimate, and that she therefore suffered humiliation and mental anguish. She further alleged that within six years from the 15th of March, 1922, she would be 21 years of age, and would be compelled to maintain, support, and educate the child until it became 21 years old at a reasonable cost of not less than $1,500; that by reason of the foregoing injuries which she had suffered in the way of physical pain and mental anguish and humiliation the defendant was liable to her in actual damages in the sum of $10,000, and that by reason of her having to maintain and support the child the defendant was liable to her in actual damages in the sum of $1,500, and that by reason of appellant's willful and malicious acts in assaulting and raping her she was entitled to exemplary damages in the sum of $10,000.

To these pleadings the defendant filed a general denial and general demurrer, and also a special denial alleging that at the time of the alleged assault the appellee was above the age of 15 years, and that whoever had sexual intercourse with her had it with her consent, and further alleged that the appellee had upon numerous occasions had sexual intercourse with other people; that appellant was incapable of begetting a child.

The findings of the jury are in substance as follows: (1) The plaintiff was 14 years of age in June, 1921, the time of the alleged assault. (2) The defendant had carnal intercourse with plaintiff in June, 1921. (3) Such carnal intercourse was without her consent. (4) Such carnal intercourse was by force and violence. (5) Prior to that time plaintiff had never had carnal intercourse with any other male person. (6) Such carnal intercourse resulted in the pregnancy of plaintiff. (7) Plaintiff has sustained actual damages in the sum of $4,000. (8) Plaintiff has sustained exemplary damages in the sum of $2,500.

In answer to first special issue requested by plaintiff the jury found that $1,500 paid now in cash would reasonably compensate plaintiff for the necessary expense of rearing, maintaining, and educating the child from the time it is six years of age until its maturity. In reply to defendant's special issue No. 17 the jury found that the defendant, Harry Jaffe, is the father of plaintiff's child. In reply to defendant's special issue No. 4 the jury found that the plaintiff was not unchaste prior to the time of the alleged assault, and further found in reply to defendant's special requested issue No. 6 that she did not consent to the act of carnal knowledge at the time she became pregnant.

Based upon these findings judgment was rendered in plaintiff's favor for the sum of $8,000, with interest at 6 per cent. from the date thereof and for all costs of suit.

By his first and second propositions the appellant asserts that it is reversible error for the trial court to state in the presence of a jury panel during their voir dire examination, in a case of this character, that:

"We all know what it [the law] is. It is not a question of whether we like it or not. The question is whether we have the nerve to enforce the law, and whether we can do it or not, as it is written,"

— and, further, that it is reversible error for the trial judge to arise from his seat and tell the jury that we all know what the law is, and no man should sit on a jury who has not the nerve to enforce that law, when such statement and comment is likely to be taken by the jury panel to mean that plaintiff, being a negro woman, is in fact entitled to recover in the opinion of the court if the jury trying the case has the nerve and courage to give her a verdict. These propositions are based on the appellant's first bill of exceptions, which shows that during the voir dire examination of the veniremen several objections were made by appellee's counsel to questions propounded by appellant's counsel to Venireman Benson which the court sustained. After some general remarks by the court, which are not specifically objected to, and during which he arose from the bench, the court made this statement in the presence of the panel:

"We all know what it is. No doubt about that. It is not a question of whether we like it or not; it is the law. The question is whether we have the nerve to enforce the law, and whether we can do it or not as it is written."

The objection made to this statement is "the same was an expression of an opinion by the court as to how he felt toward this case." No other or further objection can be urged in this court. Sharp v. Schmidt, 62 Tex. 263. In his brief appellant says that the trial judge was angry. The only evidence in the record tending to show that he was not perfectly tranquil, cool, and deliberate is his statement that we all know what the law is, and that without question. Since the learned trial judge did not mention any particular law referable to either side of the case on trial, it might have been as appropriately excepted to by the appellee as by the appellant. If error it is therefore harmless. Lammers v. Wolfertz (Tex. Civ. App.) 164 S. W. 1102; Cooper & Jones v. Hall (Tex. Civ. App.) 168 S. W. 465.

The court qualified the bill by saying in part:

"The statement of the court complained of by the defendant in this bill was made at the time the court sustained the defendant's objection to the question asked by plaintiff's counsel, and the court did not in any way, by act or word, express any opinion as to how he felt toward this case, and at that time did not have the slightest idea or opinion as to the merits of the case."

This court is bound by the trial court's qualification of the bill. Jolley v. Brown (Tex. Civ. App.) 191 S. W. 177. If the appellant had prepared his bill of exceptions in accordance with District and County Court Rules, No. 60, and V. S. C. S. arts. 2058, 2063-2067, we think many of his 48 assignments of error would not have been urged here. Brunner Fire Co. v. Payne, 54 Tex. Civ. App. 501, 118 S. W. 602. We heartily commend the practice of parties preparing their bills of exceptions during the trial and at the very time the matter to which objection is made occurs, expecially where cases are tried like this was, under high tension. Then, if the court refuses the bill as presented, it can be proven by bystanders. Such practice may delay the trial somewhat, but it will result in fairness to all parties, and avoid much of such unpleasant criticism of the trial court, as we regret to find in this case.

The third proposition is that it is error for the court in ruling upon the admissibility of testimony to state that the witness has or has not disclosed certain facts in his testimony. The bill of exception does not sustain the proposition. The bill shows that the appellant was on the stand, and appellee's counsel had been examining him with reference to a trip which Dr. Walker had made or was supposed to have made at the instance of appellant to see the appellee and her mother after the birth of the child. It further appears that appellee's counsel was trying to prove that appellant had sent Dr. Walker out to see appellee the second time. Appellant had repeatedly denied that Dr. Walker had gone out there the second time. In ruling the court said:

"He hasn't so far disclosed anything that happened on the second trip."

Appellant's counsel then said:

"I think the record would show to the contrary, and I take exception to the remark of the court that he hasn't shown anything that happened out there, and expressing the court's opinion as to what happened out there and as to what has not happened, and ask for a bill on that."

Counsel's remarks were not exactly fair to the court. Reference to the bill shows that the court's statement was correct, and corroborated the appellant's testimony to the effect that he had not sent Dr. Walker the second time to see appellee. The contention here is that the court's statement is a comment upon the weight of the appellant's testimony. We do not think so.

By the fourth and fifth propositions appellant contends that it is error for the trial judge, in the presence of the jury or apart from them, to arise from his seat, and in an angry manner rebuke coun...