Lopez v. State

• Decision Date: 28 November 1891
• Citation: 17 S.W. 1058
• Parties: LOPEZ v. STATE.
• Court: Texas Court of Appeals

17 S.W. 1058

LOPEZ v. STATE.

Court of Appeals of Texas.

November 28, 1891.

Appeal from district court, Caldwell county; H. TEICHMUELLER, Judge.

Charley Lopez was convicted of rape, and appeals. Reversed.

Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

Appellant was convicted of rape. There is but one single question to be determined in order to dispose of this appeal. The conviction rests mainly as to the corpus delicti upon the testimony of the prosecutrix. She was a negro woman; the defendant a Mexican. She was crazy, and the Mexican had lost some fingers off of his hand. This prosecution, however, was not based upon the latter clause of article 528 of our Penal Code, which makes it rape per se to have carnal knowledge of a woman being so mentally diseased at the time as to have no will to oppose the carnal act, the person having carnal knowledge of her knowing her to be so mentally diseased. Willson, Crim. St. § 905. When the prosecutrix was called to the stand, defendant's counsel requested and was accorded permission of the court to test her competency as a witness upon her voir dire, the objection to her competency being that she was insane at the time the offense occurred about which she was called to testify, and that she was still insane at the time she was proposed as a witness; that she did not possess sufficient intellect to relate transactions; and that she did not understand the nature or obligations of an oath. The court directed the examination to be had with regard to her competency, which resulted in the following questions and answers as shown by the bill of exceptions: "Question. What is your name? Answer. They put Mary Simmons to me this year. Q. What did they put to you last year? A. They put Mary Kirks to me. Q. What did they put to you the year before that? A. They put me in the prison. Q. Do you know what that gentleman there, the clerk, did when you and he held up your hands? A. No, sir. Q. Do you know what he said to you? A. No, sir. Q. Do you know what it is to be sworn in court? A. It is to speak against the truth. Q. If you were to swear falsely against this man and die, what would become of you? A. I would go to Heaven, and sing praises forever more. Q. If you were to swear falsely against this man, what would be done with you here on earth? A. I guess I would be prosecuted, or put under bond. Q. If you were to swear falsely here in court, do you think you would be punished? A. I don't know. I don't think I ought to be punished, because I have been punished enough already. Q. Do you know what you came here for? A. I guess I came here to read the fourth chapter of Proverbs. Q. Do you know on what day Christmas comes? A. No. Q. Do you know what day of the month the Fourth of July comes on? A. No. Q. Do you know what day of the week Good Friday comes on? A. No, sir. Q. Do you know what day of the week Easter Sunday comes on? A. No, sir. Q. What year were you born? A. In the year thirty-three. Q. Where were you born? A. In Texas. Q. In what part of Texas? A. In Texas. Q. Where is that? A. In Georgia. Q. Have you a husband? A. I used to have. Q. He was a lawyer, wasn't he? A. Yes, sir. Q. And a doctor, too, wasn't he? A. Yes. Q. And wasn't he a preacher, too? A. Yes, but that wasn't part of his constitution. Q. How many children have you? A. Seven, I believe. Q. They are all the same size are they not? A. Yes. Q. Where are they now? A. Some of them are in Texas, and some over in the Red Sea. Q. What church do you belong to? A. The Catholic Baptist. Q. Have not you some fine farms? A. I did have, but dropped them all into my shipmate. Q. Who is your shipmate? A. Mr. Caldwell. Q. Where do you and your shipmate go? A. Down on the bay. Q. Where is the bay? A. Over in Georgia, by the Red Sea. Q. You travel a great deal, do you not? A. Yes. Q. How long do you stay? A. One, two, or three days. Q. Where do you go? A. Up to Georgia. Q. Do you go to Europe, too? A. Yes, sir. Q. Don't you go to Asia, too? A. Yes. Q. Don't you go to Africa, too? A. Yes. Q. How do you come back? A. With my shipmate, on the bay." The defendant's counsel here informed the court that he did not care to further examine the witness on her voir dire as to her competency, but would introduce other testimony on that point. Whereupon the court suggested that he would like to hear the witness questioned as to the case about which she was called to testify, before passing upon her competency as a witness, and directed the district attorney, representing the state, to proceed and examine her as to the facts and circumstances of the case about which she was called to testify as a witness, stating to the counsel for the defendant that he would reserve his decision as to the competency of the witness until she had been so examined by the district attorney, and until the defendant should have introduced such other witnesses as he might choose to establish her incompetency. Thereupon the district attorney proceeded to examine the witness, the said Mary Simmons, she being the person alleged to have been raped by defendant, said examination proceeding as follows: The district attorney, pointing to the defendant, asked the witness: "Question. Do you know this man? Answer. No, sir. Q. Did you ever see him before? A. No, sir. Q. Mary, this man is here charged with raping you. Now tell us did he ever do anything wrong to you? Didn't you have cockle-burs in your hair and dress, and dirt on your neck? A. Oh, yes, sir. Q. Now, Mary, go on, and tell us all about it. A. Well, he came up to Nelson Harper's house, where I was, and was fooling with me in the house, and I went out of the house, and started off from him, and he came out behind me, and went around and met me; and he came up to me, and caught hold of me, and tried to get me down, but I wouldn't do it; and we fought and tussled around there until we fell. But I was as strong as he was, and fell, not right on top, but more on top than he did; but he turned me over, and got up my clothes, and `rutted' me. I got up, and pulled up his shirt-tail, and took a stick, and whipped him good. I didn't want him to do what he did. I didn't consent to it. I hallooed while he was doing me that way. Q. Now, Mary, who was it that did you that way? Was it this defendant here? [pointing to him.] A. Let me see his hand. [Defendant held up his hands, and she proceeded:] Yes, he is the man. I know he is the man who `rutted' me. I know him by his hand having some fingers off. I know his clothes, too. Q. Well, what did you do then, Mary? A. I went right straight and told Lou Harper and Lawyer Burditt about it." The district attorney here announced that he was through with the witness, and, upon cross-examination by defendant's counsel, she testified as follows: "I wasn't glad of it. I wish he hadn't. He just caught hold of me, and we tussled around. Yes, I did give him a good whipping with a stick as soon as I got up. No, there wasn't about ten people passed while he had me down; there wasn't but about one or two or three. As soon as I got up I went down to `pulk;' that is, down on the bay, over in Georgia. It was a Mexican who did me that way. I know every Mexican in this country. There is about sixty...