Lusty v. State

• Decision Date: 26 March 1924
• Docket Number: (No. 8445.)
• Citation: 261 S.W. 775
• Parties: LUSTY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 775

261 S.W. 775

LUSTY v. STATE.

(No. 8445.)

Court of Criminal Appeals of Texas.

March 26, 1924.

Rehearing Denied May 14, 1924.

Appeal from District Court, San Saba County; J. H. McLean, Judge.

Morris Lusty was convicted of rape, and he appeals. Reversed and remanded.

J. Mitch Johnson, of San Saba, and Burney Braly, of Fort Worth, for appellant.

G. E. Christian, Dist. Atty., of Burnet, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 20 years.

The offense charged is rape upon a female under 18 years of age. The facts show that Dora Robbins, the alleged injured female, was under 15 years of age at the time of the alleged offense. Her testimony was to the effect that the act was accomplished by force. They were riding together in an automobile. According to her testimony, he crossed her hands and tied them together with a string, dragged her out of the car, took the seat out of it, held her with his left hand, laid her down on the seat, raised her dress and unbuttoned her bloomers, pulled them down to her feet and then inserted his male organ in her privates. She weighed 121 pounds. After the occurrence they returned to her home. Her father and mother were present, but were not informed by her until the following morning. She slept in her bloomers, which were stained with blood. She went to the funeral of a neighbor on the following day, and on the evening of that day she told her mother. Previously she had told Mrs. Ellen Baxter. This occurred in the morning. She described the locality in which the act, according to her testimony, took place. According to the mother of the prosecutrix, she was at home when the appellant and her daughter returned about 10 or 11 o'clock at night. She heard a conversation between them in which appellant told the prosecutrix to "take her damned papers and get out." No conversation between the mother and daughter took place that night. The matter was not mentioned at the breakfast table on the following morning. The occurrence took place on the 19th of the month. The mother examined the underwear on the morning of the 21st. Her drawers were stained with blood. According to the testimony of the prosecutrix, her period was about a week before the occurrence; according to that of her mother, it was some three weeks before. There was much testimony on cross-examination of the prosecutrix and of witnesses tending to discredit her description of the route taken and the manner in which the transaction took place.

A number of bills of exception to the rulings of the court and various matters were taken. The testimony of the prosecutrix was to the effect that she had not previously had intercourse with any person. By several bills of exception complaint is made of the refusal of the trial court to permit the appellant to lay the predicate for impeachment of the prosecutrix by ascertaining from her if she had not had carnal knowledge of several other persons, naming them. The position assumed by the appellant, both in the trial court and here, is that the prosecutrix had testified to the act of intercourse with the appellant, and that she and her mother had testified to some circumstances going to show that she had had intercourse with no one else.

The appellant relied upon his plea of not guilty, thereby putting in issue the fact that he had any illicit connection with the prosecutrix; that in such a state of the record it was competent to impeach the prosecutrix by showing that others had had intercourse with her. It is a general rule that in cases of rape, where the subject of the offense is under the age of consent, previous relations with others are not material. Underhill on Crim. Ev. § 621. This rule is subject to exceptions, however. Instances are found in which the circumstances render such evidence admissible as original testimony for the purpose of explaining the condition in which the prosecutrix was found, from a physical examination or otherwise, in a manner consistent with the innocence of the accused. State v. Perry, 151 Minn. 217, 186 N. W. 310; 23 Amer. & Eng. Ency. of Law, 872; Bader v. State, 57 Tex. Cr. R. 295, 122 S. W. 555; Parker v. State, 62 Tex. Cr. R. 64, 136 S. W. 453; King v. State (Tex. Cr. App.) 256 S. W. 267; Parks v. State, 92 Tex. Cr. R. 59, 241 S. W. 1015. When, from the testimony of the prosecutrix, it appears that she has had carnal knowledge of none except the appellant, the testimony in question may be received for the purpose of impeachment upon the laying of a proper predicate. State v. Kittle, 85 W. Va. 117, 101 S. E. 70; Nolan v. State, 48 Tex. Cr. R. 436, 88 S. W. 242; State v. Johnson, 28 Vt. 513; People v. Knight, 5 Cal. Unrep. 231, 43 Pac. 6. It seems that, in a case like the present, when the act of intercourse is not conceded, in which the state relies practically upon the testimony of the alleged subject of the rape alone, and her testimony introduced upon behalf of the state goes to a case of force, and combats the idea of consent, the usual tests of truth in other cases should obtain. Duncan v. State (Tex. Cr. App.) 258 S. W. 182. The proof of force ends to cause the jury to assess a high penalty, and when it is relied on by the state the accused should be permitted to combat by the evidence usual in force cases. Under the facts shown by the bill of exceptions, it is believed that the offer of impeachment by the means mentioned should not have been rejected. Miller v. State (Tex. Cr. App.) 256 S. W. 598.

On cross-examination appellant propounded to the prosecutrix the question, "Did you not tell the witness Ellen Baxter here in the court house on yesterday that you were sorry you had told this tale on Morris Lusty?" Objection was made that it was improper, irrelevant, incompetent, and immaterial. Appellant explained that he desired an answer to the question; that, if the prosecutrix admitted it, it would tend to discredit her testimony touching the occurrence, but if she denied it he expected to contradict her by the witness Baxter, who was present, and thereby impeach her credibility. The...