Lee v. State

• Decision Date: 17 December 1902
• Citation: 72 S.W. 1005
• Parties: LEE v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W. 1005

LEE v. STATE.

Court of Criminal Appeals of Texas.

December 17, 1902.

Appeal from District Court, Dallas County; Chas. F. Clint, Judge.

Lon Lee was convicted of rape, and he appeals. Reversed.

J. C. Muse and J. C. Kearbey, for appellant. Robt. A. John, Asst. Atty. Gen., for the State

BROOKS, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 20 years.

The indictment charges the crime to have been committed on the 7th day of July, 1901, by the use of force, threats, and fraud. The following is substantially the facts proved: Prosecutrix, about 22 years of age, lived at Coppell, a small village in Dallas county. Appellant was keeping a saloon for his father, and frequently visited the prosecutrix, Rosa Parrish. Appellant was about 20 years of age. After associating together for some time they came to Dallas on July 7th. Prosecutrix states that, after reaching Dallas, appellant took her to the Alamo Hotel, secured a room, and after a while came back with a party, whom he introduced as Rev. Brown. Thereupon, in the presence of some of the inmates of the hotel, said Brown proceeded to perform the rites of matrimony between prosecutrix and appellant. Appellant said he had secured a license in Cleburne, Johnson county, authorizing said marriage. After the marriage was performed said Brown wrote out what was said to be a certificate, certifying to having performed the marriage, and gave the license, with the certificate, to appellant, for which service appellant paid said Brown some money, but she did not know how much. Thereupon the parties who witnessed the marriage, together with the minister, departed, and she and appellant went to bed in the room, and stayed there three or four hours. They then went back to prosecutrix's home, some 16 or 17 miles from Dallas, stopping on the way at a physician's to stay all night. Prosecutrix was accidentally shot in the leg just before reaching the physician's, and they stopped there for medical assistance. After prosecutrix returned home, appellant accompanying her, he left. A short while after this appellant went to San Antonio, and from there various letters were written, making the utmost asseverations of love and fealty on the part of appellant to prosecutrix. However, after returning from San Antonio, appellant informed prosecutrix that he had received a letter from said Brown, who was reputed to have performed the marriage ceremony, informing appellant that the marriage was a farce, and that he was not a clergyman, nor did he have any license to perform the marriage. This letter was shown to prosecutrix by appellant. Prosecutrix, however, states that appellant pacified her over this condition under assurance that he would rectify the matter as soon as he should be able by a legal marriage, and would make her his wife. Subsequent to his going to San Antonio he came back to Dallas, and lived there for some time. From Dallas he also wrote various letters to her, still protesting fealty and love, promising to bring her to live with him after awhile. On several occasions prosecutrix visited appellant in Dallas, and stayed at hotels all night with him. In the latter part of October or first of November they stopped at the National Hotel. Mrs. Ray, the proprietress thereof, testified that appellant introduced prosecutrix to her as Mrs. Rosa Parrish. This was prosecutrix's real name. The clerk of the hotel testified that appellant told him prosecutrix was his wife, and they occupied the same room at the hotel. On another occasion they went to a boarding house run by Mrs. Rath, and appellant there told his name as Parrish and that prosecutrix was Mrs. Parrish. At this place he secured for prosecutrix and himself a week's board, paying for the same in advance. Prosecutrix stayed there three days, and left with him. They left the house during the night, upon ascertaining the fact that Mrs. Rath had discovered their deception. There is a great deal of evidence on the part of appellant going to show that prosecutrix had been intimate with him prior to the 7th of July, the date alleged in the indictment. He also denies in toto any mock marriage or ceremony at the Alamo Hotel. The evidence further discloses that some time after this transaction for which appellant is being prosecuted he was married to another woman.

The first bill of exceptions complains that the court erred in permitting the state to prove by J. M. Skelton, justice of the peace in Dallas county, that on April 6, 1902, witness, as such justice, under a marriage license issued from the county clerk of Dallas county, solemnized the rites of matrimony between defendant Lon Lee and Ella Lee. He also objected to introduction of the marriage license. Appellant insists that said testimony was irrelevant and immaterial and impertinent, and tends to show another offense committed by defendant, and that said evidence was calculated to create a prejudice in the minds of the jury against defendant; and because said marriage between defendant and Ella Lee is not and cannot be an issue in this case, or as tending to shed light upon the rape charged in the indictment. The rape alleged to have been committed was on July 7, 1901; and the fact that appellant on the 6th day of April, 1902, married another woman, is a circumstance that might be properly considered by the jury in passing upon the intent, purpose, and motive of appellant at the time that the rape is alleged to have been committed,—that is, it is a circumstance going to show that he had no motive or purpose of ever consummating the marriage at any time. Its probative force is a question for the jury.

Bill No. 2 complains that the court erred in forcing appellant to testify that he went to Arkansas for his wife, and to various and sundry matters going to show that he had abducted his wife from the home of her parents, against their wish, will, and consent, and ran away with her, and brought her to Dallas, and married her. These circumstances would not be germane to any issue being tried, and would be introducing, as appellant insists, other offenses or acts that shed no light upon the crime for which he is being prosecuted.

The third bill insists that the court erred in the following: Appellant introduced Jones Paynes, who testified that he knew appellant, and that in the latter part of October or the first of November, and late in the evening, "he saw them going to the National Hotel, in the city of Dallas, situated on Pacific avenue." That on that night about 9:30 or 10 o'clock he went to said hotel, and to defendant's room, and knocked on the door. Defendant opened the door, and talked with witness, and he saw a woman in the room. Counsel asked said witness how defendant was dressed when he came to the door, and whether or not he was undressed. The state objected to said testimony, and the court sustained the objection. Appellant offered to prove that witness saw a woman in the room, but did not recognize her. We see no connection that this testimony may have with the other facts of this case. It is true, as above stated, the bill of exceptions shows that the witness testified "that he saw them." There is nothing shown by the bill as to whom this relates. Clearly, if appellant went to the National Hotel with prosecutrix, and there are circumstances showing that prosecutrix was in the bed with appellant, it would be proper to permit the testimony to be introduced, but the bill does not show that any error was committed.

Appellant insists that the court erred in failing to peremptorily instruct the jury to return a verdict of not guilty, for that, under the testimony of Rosa Parrish, defendant and Rosa Parrish were lawfully married in accordance with the laws of Texas. As we understand appellant, he insists that the evidence of prosecutrix makes out a lawful marriage under the laws of Texas. Appellant justly insists that there can be marriage in Texas without a license, as provided by the statutes, since the decisions hold that the statute authorizing licenses to marry does not inhibit a common-law marriage without license. In Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399, 716, 37 Am. St. Rep. 802, we held that all that can be required in any case involving marriage is proof of a valid marriage, for the violation of which the parties thereto may be punished, whatever be the form of the ceremony; or if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding on the parties, which would subject them to legal penalties for the disregard of its obligations. An inspection of the evidence in said case discloses that the parties lived together, acknowledging each other as husband and wife, for years after the consummation of the marriage. In Ingersol v. McWillie (Tex. Civ. App.) 30 S. W. 56, Chief Justice Lightfoot, delivering the opinion of the court, after commenting upon the failure to get a license, said: "Of course no such excuse can be shown now for a failure to observe all the rules and regulations prescribed by law and sanctioned by an enlightened people and Christian civilization, but the policy of the law in protecting parties who have innocently been led into such a marriage is the same. From the testimony in this case we think there can be no doubt that Hortense Dix, an inexperienced and confiding girl, just from school, and who had a right to look to A. R. Collins as a protector, was induced to enter with him into the marriage state, under the agreement of present marriage, he giving some business complications as an excuse for not making it public by license and public ceremony. They lived and cohabited as husband and wife, and he introduced her to his friends as his wife, thereby admitting the...