Jones v. State

• Decision Date: 22 January 1913
• Citation: 153 S.W. 136
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

153 S.W. 136

JONES v. STATE.

Court of Criminal Appeals of Texas.

January 22, 1913.

Appeal from District Court, Panola County; W. C. Buford, Judge.

Tom Jones was convicted of rape, and he appeals. Reversed and remanded.

J. H. Long and P. P. Long, both of Carthage, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for rape by force; appellant receiving a term of five years' confinement in the penitentiary.

The only question presented for revision is the sufficiency of the evidence to justify the verdict. The prosecutrix, Lemmie Allison, was shown by the evidence to be over 16 years of age. On the 21st day of October, 1911, appellant came to the home of her father. When she first discovered him, he was "standing on the door block." She turned, and "looked at him, and he asked me to give him some. I told him I wasn't studdying him. He then came on in the kitchen, where I was, and caught hold of me, one hand at my throat and the other around me. My sickness was on me at this time. He threw me down, and, when he hurt me, I bit and began scratching him, and he then got up, and I grabbed a board and hit him with it, and he ran away. I then went down into the cotton patch where my mother and father and Wm. Powell were, and told them Tom Jones had been up there where I was. It was about 11 o'clock on Friday, October 21, 1911. He went about half way in. He got on top of me, and he put his thing in mine. I tried to hollow, but I could not, for he was choking me. Just as soon as I got aloose from him, and had run him off, I went to the field and told my mother. My mother examined my privates as soon as we got back to the house. I did everything I could to keep him from raping me, and I did not consent to his having intercourse with me. I have known Tom Jones some time. He used to go with me. When he told me to give him some, I told him I wasn't studdying him. I did not hollow or make any outcry when he came on into the room. I just kept on telling him I wasn't studdying him. He grabbed me then and threw me on the floor. His left hand was around me, but don't know where his right one was. He got my drawers off, but never got my dress above my knees. He did not get my legs apart, but they were right close together all the time. When he got on top of me, he hurt me. Don't know what he hurt me with, but when he hurt me I bit him, and he got up and I grabbed a board, and hit him side the head, and he ran off. He got off of me just as soon as I bit him, and I bit him just as soon as he got on top of me. I know he went into me half way, because my mama examined me, and she told me so, and she also told me to swear that he went into me half way. I never did hollow or cry out, because I could not. He was choking me."

The mother of the prosecutrix testified that she was in the cotton patch, picking with her husband, Dave Allison, Wm. Powell, and some children. They were about 300 yards from the house. "There was no obstruction between us and the house, and could see the house from where we were picking cotton. My daughter was at the house, cooking dinner. About 11 o'clock she came down to where we were picking cotton, and was crying. Her clothes were torn nearly off of her, and she was bloody all over in front. She told me Tommie Jones had been up there. I went on to the house and examined her, and knew Tommie Jones had been there. My daughter's sickness was on her, and had been before she was raped."

Dave Allison, the father of prosecutrix, testified in regard to the fact that he and Powell and his wife and some children were picking cotton about 300 yards from the house when his daughter came down there, crying, about 11 o'clock. She told them that Tom Jones had been up there. This witness did not ask his daughter any question about it, but left for the house. He says he did not talk to her about the matter. He says: "We were in sight of the house, picking cotton, and could have heard any one halloo. I didn't hear any disturbance up there at the house. I did not stop my girl from school last year to nurse the baby, but because she was being scandalized. I stopped her before this business came up." He denied having a conversation with Mr. Carmichael, a white man, and merchant at Clayton, about two weeks before the grand jury met which indicted appellant for this offense, in which "I told him I wanted this business to stop, that I didn't want it to go any further, because I didn't believe my daughter had been raped. Tom Jones used to go with my daughter, and I thought a lots of him then. Don't like him now; would like to see him go to the penitentiary." This witness was contradicted by Mr. Carmichael, the white man above mentioned, in accordance with the predicate laid. This was the state's case.

Appellant introduced Seymore Roquemore, who says he saw the defendant on the day indicated about 12 o'clock, going from his father's field in the direction of Mr. Cariker's store. He was in the public road, walking; saw him going down the road, and saw him go by and beyond the house indicated by prosecutrix. The witness says: "I know he did not stop there. I came on behind him, and saw him go on a mile on the other side of Dave Allison's house, going in the direction of Cariker's store."

A white man by the name of Long testified he was mail carrier from Clayton near where the offense occurred on the day indicated, and left Clayton at 12:10 p. m., and met defendant coming from Cariker's store. It was then about 12:30. He had a conversation with defendant about getting witness some wood. Defendant had a bottle of snuff in his hands, and said he was going home. Appellant...