King v. State

• Decision Date: 07 November 1923
• Docket Number: (No. 7595.)
• Citation: 256 S.W. 267
• Parties: KING v. STATE.
• Court: Texas Court of Criminal Appeals

256 S.W. 267

KING v.STATE.

(No. 7595.)

Court of Criminal Appeals of Texas.

November 7, 1923.

Rehearing Denied December 12, 1923.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Robert King was convicted of assault to rape, and he appeals.Affirmed.

A. E. & Carlos B. Masterson, of Angleton, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

From a conviction in the district court of Brazoria county of assault to rape, with punishment fixed at five years in the penitentiary, appellant appeals.

At the time of the alleged rape prosecutrix was a girl not quite 13 years of age.She was living with her father, her mother being at work in West Columbia.On the 14th of April, 1920, her father left her at a house in which appellant lived; an aunt of prosecutrix also residing there.Later during the day the aunt went away to a wedding, leaving the child at the house.Prosecutrix testified that twice during the night appellant copulated with her, that it caused her much pain and bloodshed, and that she begged him not to do it.The mother of prosecutrix testified that she came to Angleton where her daughter was on the morning of the 15th and found her locked in a room at the house where appellant lived, and that prosecutrix told her of the assault by appellant, and upon examination witness said she found the underclothing of the child bloody.In this she was corroborated by the child's father.They took the girl to a doctor that same day.On the trial of the case the doctor testified that the child's hymen had been torn; there were bruises of the parts and inflammatory "charges"(which we take to be a typographical error and that the doctor said "discharges"); that her private parts had been penetrated, and from his examination he would state that the penetration was recent; had been made within 24 hours prior to his examination; the private parts were bruised and sore and the hymen torn,

Appellant placed on the witness stand a boy of 17 by the name of Harris and offered to prove by him that he had had intercourse with prosecutrix many times prior to the date of the alleged rape.The bill of exceptions complaining of the rejection of this testimony states that same was offered as explanatory of the testimony of the doctor as to the condition of the girl's privates; to contradict prosecutrix and her mother wherein they swore that she had not been allowed to associate with boys or men and had no opportunities for intercourse; and as affecting the credibility of prosecutrix and her mother; and for whatever it was worth.In sustaining the objection the learned trial judge offered to allow testimony of any intercourse had with prosecutrix within 24 hours prior to the alleged rape.

In Bice's Case, 37 Tex. Cr. R. 43, 38 S. W. 803, the prosecutrix swore to but one act of intercourse with the accused, and that it was her only act of that kind with any one, and she said that her baby was the fruit of said act.Proof on behalf of appellant that prosecutrix had intercourse with others was rejected.In the opinion it is stated that the four grounds upon which said testimony was offered were: (1) To impeach prosecutrix, who said she had known no other man; (2) to refute her claim that her pregnancy resulted from the single act with the accused; (3) the mitigation of punishment; and (4) generally for all purposes.In considering the matter this court held that such testimony should have been admitted upon the second ground mentioned.This amounts to a denial of its admissibility for the other reasons stated.If about the same time as claimed by prosecutrix to be that of her intercourse with accused from which a child resulted, she claiming that she never had intercourse with any other person, proof of the fact that she had two such acts with another man at such time as that the child might reasonably result therefrom would appear cogent evidence to rebut the state's proof of pregnancy and childbirth offered as corroborative of the prosecutrix.In Knowles v. State, 44 Tex. Cr. R. 322, 72 S. W. 398, under a similar state of facts, like evidence offered by the accused was held admissible on the authority of the Bice Case, supra.In the opinion many authorities are cited holding such evidence inadmissible for impeachment, the matter inquired about being deemed immaterial, and the opinion goes no further than to hold the testimony admissible as rebutting the state's theory of corroboration by proof of pregnancy and the birth of the child.We are in accord with the proposition that any fact having probative force which rebuts testimony offered as material by the opposite side is admissible.In Bader v. State, 57 Tex. Cr. R. 293, 122 S. W. 555, appears a discussion of the question which is now before us, which, however, is wholly dicta; the bill of exceptions presenting the complaint in that case being qualified by the trial judge in a statement that he held such evidence to be admissible, but none was in fact offered.The case was reversed for other reasons.In Skidmore v. State, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 466, an incest case in which the birth of a child was proven to corroborate prosecutrix in her claim of intercourse with the accused, we held that he would have the right to rebut such proof by showing that another person was the father of the child, or for the same purpose that she had intercourse with another man about the time charged.Shoemaker v. State, 58 Tex. Cr. R. 518, 126 S. W. 887, is cited by appellant.In that case prosecutrix on cross-examination was asked if following her being caught in an act of intercourse with one Bynum by her brother, she had been upbraided by her sisters for such conduct and had then told them that if they said anything more about it she would charge appellan...