Johnson v. State

• Decision Date: 25 May 1886
• Citation: 17 S.W. 252
• Parties: JOHNSON v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

17 S.W. 252

JOHNSON v. STATE.¹

Court of Appeals of Texas.

May 25, 1886.

Appeal from district court, Washington county; I. B. McFARLAND, Judge.

Albert Johnson was convicted of the rape of one Anna Knuppel, and appeals. Reversed.

B. H. Bassett and E. B. Muse, for appellant. J. H. Burts, Ass't Atty. Gen., for the State.

HURT, J.

This is a conviction for rape, the punishment imposed being imprisonment in the penitentiary for 99 years. We desire to notice specially but three matters:

1. In forming the jury, John Watson, a member of the special venire, being examined touching his qualifications as a juror, stated, in answer to questions, that he could read and write a little, but not much; that he could read print, and could write his name, but could not read handwriting unless it was very plainly written. The state challenged for cause, which was sustained by the court, and defendant excepted. We have examined all the cases accessible bearing upon this subject, but find none directly in point. We are of the opinion that the juror was incompetent. The statute² must have intended something practical. That a person can write his name certainly does not fill the measure of the statutory requirement that the juror should be able to write. We think that he should be able to express his ideas in words upon paper, with pen or pencil. Rainey v. State, 20 Tex. App. 473. G. W. Verness, a member of the special venire, being examined touching his qualifications, in answer to questions propounded on the part of the state, stated that "he had heard a portion of the evidence on the habeas corpus trial, and had then formed an opinion in reference to the guilt or innocence of defendant, but that this opinion, so formed, would not now influence his verdict, and that he could, notwithstanding such former opinion, render an impartial verdict according to the law and the evidence." At the instance of the state, and over objection by the defense, he was held incompetent, and defendant reserved a bill. We are of the opinion that this juror was competent. It will be noticed that the juror did not state that he had at that time a formed opinion, but from the trial it would seem that he referred to the former opinion. Whether he then had an opinion does not appear from the record. But, let us suppose that he had, and entertained this opinion up to the time of the trial. He states that it would not influence his verdict, and hence, without further examination developing that probably such opinion would affect his verdict, we think he was competent. It was error to reject the juror. Thompson v. State, 19 Tex. App. 611.

2. Over the objection of defendant, the state introduced in evidence the conduct and declarations of Anna Knuppel, the prosecutrix, after the commission of the offense. These declarations etc., are claimed by the state to be admissible as the res gestæ. The rule upon this subject will be found clearly stated and illustrated in 1 Whart. Crim. Law, § 566, thus: "In prosecutions for rape, the party injured being a witness, it is admissible to prove that she made complaint of the injury while it was recent, but the particulars of her complaint have been held not to be evidence, except to corroborate her testimony when attacked. And, in any view, such statements cannot be received as independent evidence to show who committed the offense. * * * Since such evidence is admissible merely as corroboration, it cannot be used to patch out the case of the prosecution by supplying new facts. Thus, on the trial for rape which came before the Virginia court of appeals, the main question was as to the identity of the prisoner. The female was examined, and, although she swore positively that the prisoner was the person who committed the outrage upon her, she declined to give a description of him as at the time of the outrage. The commonwealth then introduced a witness to prove the particulars of the description of the person who committed the outrage, given by the prosecutrix to the witness on the morning after the rape was committed. This, for the reason just given, was properly held inadmissible." See, also, 2 Bish. Crim. Proc. § 963. If the state could not show in this manner who committed the offense, certainly the description of the offender given by the prosecutrix cannot be introduced in evidence.

3. There was testimony of quite a number of witnesses very strongly supporting an alibi. Upon this subject the learned judge charged the jury that "the defendant relies on an alibi as a defense; that is, on proof that, at the time of the offense, if any was committed, he was at another place, which rendered it impossible for him to have been present at the commission of the offense. On this issue the burden of proof is on the defendant to show by a preponderance of evidence the facts...