Knowles v. State

• Decision Date: 11 December 1902
• Citation: 72 S.W. 398
• Parties: KNOWLES v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W. 398

KNOWLES v. STATE.

Court of Criminal Appeals of Texas.

December 11, 1902.

Appeal from district court, Bosque county; W. Poindexter, Judge.

Ab Knowles was convicted of rape, and appeals. Reversed.

Lockett & Cureton and Wm. Knight, for appellant. H. S. Dillard, Co. Atty., W. L. Alexander, Asst. Co. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of rape upon a female under the age of 15 years, and given 5 years in the State Penitentiary.

Bill No. 1 complains of the action of the court overruling the application for continuance. This was the second application, and the explanation of the trial judge to the bill and an inspection of the evidence shows that the testimony was purely cumulative. There was no error in refusing the continuance.

The second bill complains of the court permitting the state to show by prosecutrix that some four or five months after the alleged crime she took her father to the pasture in which the crime was committed, and pointed out the place. The seventh bill complains that the court erred in permitting the father to testify to this fact, and to further state that said place was in Bosque county. The trial court states that this evidence was admitted for the purpose of locating the place by the prosecutrix, in order that other witnesses might testify that particular place was in Bosque county. The evidence was so limited in the charge. The usual manner of locating the place is for the witness to describe the place if he does not know in what county it is situated, and then for witnesses to be placed on the stand and testify that said place is or is not in the particular county. However, we see no objection to proving the matter as was done in this case.

Appellant also complains that the court erred in permitting the prosecutrix to testify that she knew her age from an inspection of the family Bible, which stated it, and from what her mother taught her. The bill shows that appellant asked the witness how she knew her age, to which she replied, "From the family record." She was then asked if she knew it from the family record only, and she replied that she knew it from the record and from what her mother taught her. The court, in his explanation, states that such record was put in evidence, and spoke for itself. We do not think there was any error shown by said bill. Tull v. State (Tex. Cr. App.) 55 S. W. 61.

Bills of exception Nos. 4, 9, and 10 complain that the court erred in not permitting appellant to ask prosecutrix, for the purpose of laying a predicate to impeach her, as to whether or not she had had previous carnal intercourse with other parties than defendant, and to prove by said other parties that they had had carnal intercourse with prosecutrix, and that her general reputation for chastity was bad. There was no error in this, since the question as to whether or not prosecutrix consented to the rape is not a matter to be inquired into, and it becomes immaterial and irrelevant whether or not prosecutrix had had carnal intercourse with other parties, she being under the age of consent. Favors v. State, 20 Tex. App. 155; Wilson v. State, 17 Tex. App. 525. In Thomas v. State (decided at the present term) 72 S. W. 178, the motion for new trial complained that the court erred in not giving special instructions requested to the effect that the reputation and condition in life of prosecutrix, as well as defendant, should be viewed by the jury in the light of mitigating the punishment. We held that such a charge would be upon the weight of the evidence, and not the law. Lawson v. State, 17 Tex. App. 302; Kennon v. State (Tex. Cr. App.) 42 S. W. 378; Steinke v. State, 33 Tex. Cr. R. 66, 24 S. W. 909, 25 S. W. 287.

In bill No. 5 appellant complains that the court erred in refusing to permit him to prove by appellant's brother that said brother had a conversation with prosecutrix, in which she told him that she was over the age of consent, and that he communicated this fact to appellant. In his explanation to the bill the court states that the evidence going to show that prosecutrix had declared she was over the age of consent was admitted, but he declined to admit evidence to the effect that the brother of appellant communicated this fact to appellant. This testimony is hearsay, and not admissible.

Upon the trial the court permitted the state to show by the father of the prosecutrix that on the night the crime was alleged to have been committed he searched for his daughter in the town of Valley Mills, and could not find her. The court, in his explanation to the bill, states that this evidence was material to show that the girl was out with defendant during the night, and tended to show that defendant did not go to Valley Mills that night, as he stated to his brother that night he was going to do. This circumstance would be pertinent evidence going to corroborate the testimony of prosecutrix, and, however remote or weak it might appear, would only go to the weight, and not to the admissibility, of the testimony.

The eighth bill complains that the court should have permitted appellant to show by his brother that the sister of prosecutrix stated to appellant's brother, in the presence of prosecutrix, what the age of prosecutrix was. An examination of the bill shows that the answer of the witness would have been that prosecutrix's sister said that prosecutrix was ____ years old. The court states that no predicate was laid for the introduction of this testimony to impeach the prosecutrix. For aught the bill shows, the answer might have been against appellant's interests, since it does not state what the age of prosecutrix was, merely saying that she was ____ years old.

Appellant also complains because the court did not charge the jury, as requested, that, while prosecutrix in a rape case need not be corroborated, still the jury should be instructed to carefully consider her evidence. This charge is upon the weight of the evidence, and the failure to give the same was not error.

There is a great deal of testimony in the record pro and con upon the question of rape. The jury has settled the controversy against appellant, and the evidence is sufficient to support their finding.

The judgment is accordingly affirmed.

On Motion for Rehearing.

(Jan. 18, 1903.)

This case was affirmed at the Tyler term, 1902, and now comes before us on motion for rehearing. Appellant insists "that the court has misconceived the point raised by his bills of exception numbers four, nine, and ten, because in the latter part of that paragraph of the opinion discussing these bills the court used the following language: `There was no error in this, since the question as to whether or not prosecutrix consented to the rape is not a matter to be inquired into.' Appellant insists that the question of consent is not raised in his brief at all, but that the point raised is that prosecuting witness, Ethel Stoval, having testified that appellant was the father of her child, and produced the child in court to corroborate her testimony, and also having testified that she never had sexual intercourse with any other person, thereupon appellant proposed to contradict her testimony by showing that it was not true, and that she had intercourse with various parties, named in said bills of exception, at a time not so remote but what these parties could have been the father of this child." The writer is still of opinion that this evidence is inadmissible. Mr. Greenleaf, in his work on Evidence, uses this language: "The character of prosecutrix for chastity may be...