Liles v. State

• Decision Date: 08 March 1911
• Parties: LILES v. STATE.
• Court: Texas Court of Criminal Appeals

135 S.W. 1177

LILES v. STATE.

Court of Criminal Appeals of Texas.

March 8, 1911.

Rehearing Denied April 5, 1911.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Jim Liles was convicted of assault with intent to rape, and he appeals. Affirmed.

J. T. Daniel, P. C. Sanders, and Penix & Eberhart, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with assault with intent to rape. He was placed on trial this time, under the indictment for the offense of making an aggravated assault on Annie Lee Liles, a girl under 15 years of age, and convicted; his punishment being assessed at a fine of $500 and imprisonment in the county jail for one year.

This is the second appeal in this case; the judgment of the court upon the former appeal being reported in 58 Tex. Cr. R. 310, 125 S. W. 921. Defendant reserved a number of bills of exception to the admissibility of certain testimony. The first three relate to the testimony of Dudley Lotspeich. This witness testified that on the night of the alleged assault he saw a man and woman, or girl, come riding by his house, riding a black mule. Just after passing his house, they turned out of the road and rode down into a mesquite flat. Shortly thereafter he heard a female voice crying, and heard a man's voice rebuking her. He recognized the man's voice as that of this defendant. He did not go down there that night, but next morning he went to where he saw the man leave the road the night before and found the mule's tracks. He followed the mule's tracks down into the mesquite flat to where the mule stopped. He could tell he stopped because it was tramped down and he could see the mule's tracks. Here he also saw the tracks of a girl or small woman and a man's tracks. The grass about the place had been mashed down over a space of two or three feet or more. Defendant objected to the witness stating "he saw the tracks of a girl or small woman," on the ground that it was an expression of opinion. He also objected to that part of the testimony about the mule's tracks and could tell where the mule stopped, because it was tramped down and he could see the mule's tracks, and that he there saw also the tracks of a girl or woman, on similar grounds. He also objected to the witness testifying that there was a place on the ground where the grass had been mashed down over a space of two or three feet. We hardly think this testimony bears the construction placed thereon by defendant. It was not opinion evidence, but a mere recitation of facts. He saw the mule's tracks; he saw the woman's tracks; he saw the grass mashed for a certain space. As we understand the rule, this character of testimony has always been held admissible. Clark v. State, 28 Tex. App. 195, 12 S. W. 729, 19 Am. St. Rep. 817; Rippey v. State, 29 Tex. App. 44, 14 S. W. 448; Thompson v. State, 19 Tex. App. 613; Goldsmith v. State, 32 Tex. Cr. R. 115, 22 S. W. 405.

Defendant also reserved bills of exception to certain parts of Mrs. Lotspeich's testimony. She testified: "I heard the cries of a woman or girl. I recognized one as the voice of a female, and also heard the sound of a man's voice, both of which seemed to be located out in the flat of bushes across the road from my home. I could not understand anything that was being said by the man or girl, but could plainly distinguish the tone of the voices as that of a man and a woman, or girl. At times his voice would be low; but, as the cries were louder or more distinct, his voice would be louder, and, judging from the tone, they were of a rebuking manner, as though to get the other voice to hush. I heard the man's voice distinctly, as I thought, and recognized it as that of defendant. As to the voice of the female, it did not occur to me at all who it was. I could hear her talking, but could not distinguish the words, and her talk would be intermingled with cries." Defendant's objection was to that part of the testimony where the witness says she took the voice of the man to be that of Jim Liles, defendant. The witness also testified: "I do not say positively that the man's voice I heard was that of defendant. Only remember that I recognized it at the time as his voice, but I could be mistaken as to the identity. I had heard his voice a number of times." In the light of all the testimony of the witness, we think the statement admissible. She shows she is familiar with the sound of defendant's voice; that ...