Kearse v. State

• Decision Date: 13 November 1912
• Citation: 151 S.W. 827
• Parties: KEARSE v. STATE.
• Court: Texas Court of Criminal Appeals

151 S.W. 827

KEARSE v. STATE.

Court of Criminal Appeals of Texas.

November 13, 1912.

Rehearing Denied December 18, 1912.

Appeal from District Court, Fisher County; John B. Thomas, Judge.

Knox Kearse was convicted of crime, and he appeals. Affirmed.

M. E. Rosser and Wilmeth & Boyd, all of Snyder, L. H. McCrea, of Roby, and Higgins, Hamilton & Taylor, of Snyder, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of rape of a girl under 15 years of age, and his penalty fixed at 10 years in the penitentiary.

Appellant contends that the evidence is insufficient to sustain the verdict. The contention is based largely on the fact that the girl alleged to have been raped by appellant contradicted herself in her testimony and was contradicted by the testimony of other witnesses and by some circumstances. There is hardly any contested case that comes to this court but what there are contradictions in the testimony, and frequently a principal witness may contradict himself in material matters. In such cases, when it is contended that the evidence is insufficient to sustain the verdict, this court cannot legally take the place of the jury, and determine whether or not it will believe any witness or witnesses, and from all of the testimony, as put down on paper and sent to this court, it would have found a different verdict from that of the jury, and, if so, reverse the case on that account. The only question this court can determine is whether there is sufficient evidence, if believed by the jury, to sustain the conviction. This court passes upon that question as a question of law which is all it can legally do under such circumstances. Our law expressly provides that the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony. This court therefore cannot take that question from the jury without usurping authority that was never given or intended to be given to it. The jury in a felony case is made up of 12 fair, disinterested, impartial, unprejudiced, unbiased, and competent jurors selected from different portions of the county, each one of whom hears all the witnesses, looks them in the face when testifying, observes their manner and the method of their examination by the respective attorneys, then hears the argument of the attorneys for each side, one side undertaking to break down the testimony of the witness and calling attention to every contradiction in the testimony of such witness and the contradiction by others of him, the other explaining such matters, and seeking to sustain such witness, then hear and take with them in their retirement the charge of the court. Then the twelve men discuss and consider in private between themselves all such matters, and, after weighing it all and all the arguments against it and in support of it, come to the conclusion that the testimony of a certain witness, or witnesses, although contradicted and although there are contradictions in the testimony of such witness, that it is true and they believe it. The jury is made up of men of different ages, from young to comparatively old men, and they pursue different occupations and businesses. With all these surroundings they are much more competent to arrive at the truth than are the judges of this court who must look solely to the testimony as written down on paper. It cannot portray the manner, the looks, and the deportment of the witness, nor the manner of his examination and cross-examination by the attorneys. Besides this, the presiding judge hears and sees and observes all that the jury does in the trial of the case and he then sustains the verdict of the jury. Therefore, when the evidence taken in its favorable light sustains the verdict, this court cannot legally set it aside. We have carefully read and studied all the evidence in this case. It is amply sufficient, if believed by the jury as it was, to sustain the verdict. We are not authorized to set it aside. It is unnecessary to recite the evidence.

Among others, the appellant introduced the witness Clarence Thrash, whose testimony, in some particulars, tended to break down the state's case, as made by its evidence, and in some particulars in favor of the defendant. On cross-examination of this witness the state by him showed or tended to show some inconsistencies, if not contradictions, of his own testimony, damaging to the state, given in his direct examination. Then the district attorney produced the written and signed testimony of this witness before the grand jury when they were investigating the case and found the indictment herein. He admitted that that was his signed statement of his testimony before the grand jury, and that he had so testified before the grand jury; that, before he testified before the grand jury, he was duly and properly sworn. The district attorney, who was present in the grand jury room and who wrote down this statement before it was signed by this witness, as well as one of the grand jurors, testified positively that this statement of the witness of his testimony before the grand jury was written down at the time he gave it, read over to him, and signed by him. There is no doubt, and cannot be, from the testimony that this statement was signed by the witness and his testimony before the grand jury as therein written down and signed by him. This testimony in some particulars was in direct contradiction of some of his testimony in favor of the appellant given on this trial.

The state thereupon, without any objection whatever by appellant, introduced the following portion of said statement: "My name is Clarence Thrash. I know Essie Moore and Etta Moore. Am a rural route mail carrier. Etta Moore told me she was 17 years old, and asked me to hold her mail. Have been to Moore's house two times. The first time was there was to get E. L. Moore to sign a petition to the government for a daily mail route. This was in 1911. I cannot tell what month or the day of the month. Nobody but the Moore family was there that day. I was back there some time before any arrest was made. Nobody was there that day except the two girls. It was on Friday or Friday a week before anybody was arrested. Can't say for certain. I went with Knox Kearse. Knox Kearse and I went there about the middle of the afternoon. Just the two girls were there. Two McCullough boys passed around there while we were there. We stayed there about 20 minutes. I talked to both of the girls. I have had sexual intercourse with Essie Moore. I never did have intercourse with Etta Moore. [Some omitted.] At the time Knox Kearse and I were at Moore's house as above stated, Knox Kearse went into the Moore house. I did not use my watch to tell the length of time that he was in the house. Knox Kearse was with the younger girl. We went to the house a second time to get a drink of water, and Kearse went into the house with the younger girl, Etta Moore, the second time that we were that day. This day was not a regular mail day with me. Kearse and the girl remained in the house three or four minutes. I was with Essie Moore during this time. Me and Essie had gotten to my motor cycle about 100 yards from the house, when Kearse and Etta Moore came out of the house. Kearse and Etta Moore come on to the motor cycle where me and Essie were. I did not see any children at the house that day. E. L. Moore, the father of the girls, was out in the field about a half mile. I have guyed Knox Kearse, and offered to bet him a dollar that he has had intercourse with Etta Moore, but he never would say whether he had or not. He would not say anything. That day Knox Kearse told me that he had been out to Moore's before then. One night in town, when Kearse was with Lon Smith, Smith was drunk, and Kearse took him home in an auto. Kearse afterwards told me that he had been out to Moore's that night, in the car he took Smith home in, that night. Clarence Thrash."

In the introduction of it by the state, where the words in about the middle of the body of the statement above copied says in parenthesis "some omitted," the state omitted and did not introduce that part of the statement. Thereupon the appellant announced that he would introduce that part of the statement which was omitted by the state, which part is as follows: "Charles Jones told me that he had been to Moore's house. He told me this about one week before he was arrested. He said the Moore girls were warm members. Jones and I were standing in a crowd when he made this statement. He said he had been out there, and asked me if I had seen him out at Moore's house. It was about a week before Jones was arrested that he made this statement. Hugh Scarborough told me that he had been out to Moore's. I think it was about a week after the boys were arrested that he had been out there. Have seen Curtis Teeter and another boy out there at Moore's," announcing at the time that they desired to introduce it for the purpose of impeaching the prosecutrix and for whatever the jury might think it worth.

The court on this subject gave to the jury this charge: "Fourth. The written statement of the witness Clarence Thrash made before the grand jury of Scurry county, Tex., from the beginning of said statement up to and including that part of said statement ending with the words, `I never did have sexual intercourse with Etta Moore,' and also that part of said statement beginning with the words, `At the time Knox Kearse and I were at Moore's house as above stated Knox Kearse went into the Moore house,' and ending with the end of said statement, was not admitted before you for the purpose of proving the guilt of the defendant in this case, but was admitted before you solely for the purpose for you to consider, if you do consider it, for whatever right (weight) you may give it, if any, or for whatever you may consider it worth, if anything, as impeaching the credibility of the...