Johnson v. State
Decision Date | 30 January 1957 |
Docket Number | No. 28732,28732 |
Citation | 298 S.W.2d 132,62 A.L.R.2d 1064,164 Tex.Crim. 204 |
Parties | , 62 A.L.R.2d 1064 Benny Ray JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
[164 TEXCRIM 204] Werner A. Gohmert, Alice, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is statutory rape; the punishment, ten years.
Prosecutrix, aged 16, testified that the appellant had come to her home in company with other boys on three or four occasions prior to the day in question, that he came by himself that day and asked her for a date, and returned after dark and took her for a ride. She stated that he brought his automobile to a falt and then had intercourse with her against her consent and over her protest.
Prosecutrix's mother testified that upon her return home prosecutrix reported that she had been raped and that she saw that her clothes were bloody.
Dr. Virgin, who examined prosecutrix that night, testified that he found a tear along one edge of her hymen and recovered male sperm from her vagina. He was unable to say from his examination whether or not this had been her first act of intercourse.
The appellant, aged 21, testified substantially as had the prosecutrix except that he stated that the act of intercourse was accomplished without any protest on the part of the prosecutrix.
[164 TEXCRIM 205] The appellant offered several boys and girls of prosecutrix's age who testified that they had seen her hugging and kissing other boys prior to the occasion in question.
The sole question presented for review is the ruling of the court in permitting the district attorney to question, and requiring the appellant to answer, eight separate questions concerning his marital status, the location of his wife, and her condition of pregnancy. The appellant strenuously objected throughout the entire interrogation.
In the early case of Smith v. State (1902), 44 Tex.Cr.R. 137, 68 S.W. 995, 996 this Court said:
Upin retrial of the same case in 1903, Smith v. State, Tex.Cr.App., 74 S.W. 556, 557, we find the following:
In Jenkins v. State, 60 Tex.Cr.R. 236, 131 S.W. 542, the rule expressed above was reaffirmed.
In Wilkerson v. State (1910), 60 Tex.Cr.R. 388, 131 S.W. 1108, we find the first exception to the above rule. In that case, the accused spirited the prosecutrix away from her parents and began to live with her as her husband. The Court held that the proof of his former marriage was admissible, among other reasons, to cut off his defense that she was his common law wife, but held it error to prove that he had children whom he had abandoned.
Soon thereafter, in Battles v. State (1911), 63 Tex.Cr.R. 147, 140 S.W. 783, this Court had a case in which a 44-year old man had been paying long and expensive court to a 13-year old daughter of a tenant farmer. The Court said that the case before it was an exception ot the rule expressed in the Smith cases, supra, because in those cases the act of intercourse had [164 TEXCRIM 206] been admitted, as it was in the case at bar, while in the case then under consideration the accused denied the same. They held that proof of his marriage was admissible in such a case because such proof supported the uncorroborated testimony of the prosecutrix by establishing the evil purpose with which the accused pursued the child while knowing that he could not marry her.
We next find some dicta in an opinion by Judge Harper in another Smith case in 80 Tex.Cr.R. 82, 188 S.W. 983, but such dicta was disclaimed in the following case, and it will not be discussed.
Following this, in 1926, in McDuff v. State, 103 Tex.Cr.R. 668, 281 S.W. 1073, 1074, the Court overruled the last Smith case mentioned and said:
'The authorities in this state seem to be clear to the effect that it is not permissible in a rape case to prove that an appellant is a married man and that he has children.'
In the next year, in Tabor v. State, 106 Tex.Cr.R. 35, 290 S.W. 165, we find this expression:
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