Kitchen v. State

• Decision Date: 10 June 1925
• Docket Number: (No. 9339.)
• Citation: 276 S.W. 252
• Parties: KITCHEN v. STATE.
• Court: Texas Court of Criminal Appeals

276 S.W. 252

KITCHEN v. STATE.

(No. 9339.)

Court of Criminal Appeals of Texas.

June 10, 1925.

Rehearing Denied October 21, 1925.

Commissioners' Decision.

Appeal from District Court, Walker County; Carl T. Harper, Judge.

Elbert Kitchen was convicted of rape, and he appeals. Affirmed.

M. L. Bennett and E. R. Swanger, both of Normangee, and P. H. Singeltary, of Houston, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BERRY, J.

This is a companion case to that of Melton Carr v. State, 273 S. W. 256, decided by this court on June 3, and that case contains a sufficient statement of the facts.

There are nine bills of exception in the record. Bills 1 to 5 are combined and contained in the same bill, and in this bill objection is made to the testimony of five different witnesses. This bill is clearly multifarious, and we would be justified in refusing to consider it on that ground, but, in addition to this, under the record in this case, the five bills show no error.

The first bill objects to the witness Fannie Kitchen testifying against the defendant because she is his wife. There is no merit in this contention. This was an offense committed against the wife, in which the record discloses that the appellant was a principal offender, and, under article 795, Vernon's C. C. P. 1916, and the many authorities there cited construing said article, appellant's wife was clearly a competent witness against him.

Bill No. 2 complains at the action of the court in permitting the state to prove by the wife that the appellant had accused her of setting fire to a house in which Evanetta Blackshire resided. It was permissible to prove any differences that appellant and his wife may have had at or about the time of this transaction, concerning the negro woman, Evanetta Blackshire, because it was the theory of the state, strongly supported by the evidence in the case, that appellant was living in adultery with the woman Evanetta Blackshire, and was desirous of having his wife leave him in order that his liaison with the Blackshire woman might be uninterrupted. It was further in evidence that some one had set fire to the house in which appellant's alleged paramour lived, and it was clearly competent for the state to show by the wife of the appellant, under these circumstances, that he had charged her with this offense. Being permitted by the article of the code above cited to testify against her husband, it was proper for the state to prove by her any fact that would shed light on appellant's motives for the dastardly and unnatural crime with which he was charged.

There is no merit in appellant's complaint contained in bill No. 3 to the effect that the witness Melton Carr was permitted to testify that the appellant frequently stayed at the house of the Blackshire woman, his alleged paramour. This was proper and pertinent testimony showing motive on appellant's part for the commission of the crime with which he was charged. It was also pertinent for the state to prove the reason that caused the witness Carr to testify differently on this trial from what he had testified on the trial of his own case. He had a right to explain the reason for changing his testimony, and it was a proper matter for the jury to consider and determine in weighing the value of the testimony given by this witness.

Bill No. 5 complains at the court's action in permitting the witness Blackshire, appellant's alleged paramour, to state that appellant had been coming over to her house during the year she had lived there. What has been said above disposes of this complaint adversely to the appellant's contention.

In addition to what has already been said with reference to the above bills of exception, it may be proper to state that same do not set out any of the facts testified to by the witness which would show or tend to show the inadmissibility of the testimony complained of. A bill of exception to the admission of evidence which fails to state facts from which this court can determine whether the question objected to was improper or injurious is insufficient. See paragraph 3, section 29, page 543, Vernon's Ann. Code Cr. Proc. 1916, for many authorities sustaining this proposition.

Appellant complains by bill No. 6 at the court's action in refusing to instruct a verdict of not guilty. The evidence in this case is entirely sufficient to convince us beyond any question that the jury was warranted in finding the defendant guilty.

By proper instructions appellant asked the court to submit the question of Evanetta Blackshire's being an accomplice to the jury. Under the undisputed facts in this case, we find nothing which to our minds suggests that this witness was in such a status as to require that her testimony be corroborated. The fact that she was appellant's paramour does not make her an accomplice. The only other circumstances that appellant could contend would bring her within the category of an accomplice is the fact that she, at appellant's request, evaded the process of the court, and thereby failed to appear as a witness when appellant's codefendant, Melton Carr, was tried for this same offense. There is nothing in the record that even tends to connect this witness with the commission of the offense as a principal, and nothing further than the fact that she evaded the process of the court and thereby failed, at appellant's request, to testify against his codefendant, that would in any manner tend to connect her with the offense as an accessory. Mr. Bishop has stated the rule to be:

"The test of an accessory after the fact is that he rendered his principal some personal help to elude punishment, the kind of help being unimportant."

He further states:

"Keeping a witness by persuasion or intimidation from appearing against a felon on his trial does not render one the felon's accessory."

The exact question here presented was in our opinion decided adversely to the appellant's contention in the case of Schackey v. State, 41 Cr. R. 255, 53 S. W. 877. See section 705, page 362, Branch's P. C., for full collation of authorities on this subject.

Appellant complains at the court's action in refusing him a new trial because of the misconduct of the jury. The record shows that the statement of facts taken on the trial of this issue before the court was not filed in the court below until the 23d day of February, A. D. 1925, and caption to the transcript shows that the term of the court at which the case was tried adjourned on the 6th day of December, A. D. 1924. The authorities are uniform to the effect that the statement of facts taken concerning matters involving misconduct of the jury must be filed during the term of court at which the trial occurs. We therefore cannot consider the statement of facts pertaining to the misconduct of the jury in this case, and in its absence we cannot do otherwise than presume that the court correctly decided the question presented.

We have carefully considered every complaint made by appellant in this record, and it is our opinion that he has been accorded a fair and an impartial trial, and that the judgment should be in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The sufficiency of the evidence to support the verdict is challenged. Appellant claims that in proving the corpus delicti the state relied alone upon the testimony of witnesses who were accomplices within the meaning of article 801, C. C. P., which forbids the conviction of one of crime upon the uncorroborated testimony of an accomplice.

It is the state's theory that Melton Carr, a negro, was induced by the appellant to ravish his wife. Carr, who had been previously tried for the offense and against whom a verdict of guilty assessing the death penalty had been rendered, was used by the state as a witness against the appellant. Carr testified that upon the night of the offense he met the appellant at the home of Evanetta Blackshire, a negro woman. They left her house together, and went to a point near the dwelling house of the appellant. Carr then went to the house and sought to induce the appellant's wife to come out of it, appellant, in the meantime, waiting near by. Failing to...