M'Adams v. State

• Decision Date: 19 November 1887
• Citation: 5 S.W. 826
• Parties: McADAMS v. STATE.
• Court: Texas Court of Appeals

5 S.W. 826

McADAMS v. STATE.

Court of Appeals of Texas.

November 19, 1887.

Appeal from district court, Shelby county; J. G. HAZLEWOOD, Judge.

The indictment charged appellant and John Riden, Pedly Riden, James Riden, Henry Chumley, Henry Becket, Will Booth, and Wash Flournoy with the rape of Minerva Horton, in Shelby county, Texas, on the twentieth day of July, 1886. The prosecutions against Booth, Becket, and Chumley being dismissed, and severance being granted in the other cases, the defendant was placed upon trial, and convicted; his punishment being assessed at a term of 35 years in the penitentiary.

The state proved by its first witness an engagement entered into on Saturday evening, July 20, 1886, between defendant, John, James, and Pedly Riden, to go that night to Horton's house, for the purpose of "having some fun." Another witness testified that Jim Riden, defendant, Will Booth, Becket, and Chumley came to his house early on that night, and left between 9 and 10 o'clock to go to Horton's house to have "some fun." Minerva Horton testified that four men came to her house about midnight, and, by threats to kill her husband, ran him off. They then, with a presented gun, and by threats to kill her, compelled her to submit herself to the carnal passion of each of them in turn, and to two of them, one of whom was defendant, twice, the several outrages being committed in rapid succession, and without intermission. Those four men, the witness declared positively, were defendant, John Riden, James Riden, and Pedly Riden. By Becket and Chumley the defense proved that they, James Riden, defendant, and Will Booth were the parties who went to Horton's house; that they went there with no other unlawful purpose than to have sport by frightening Horton, and running him from his home; that the several parties went into the yard, but not into the house; that they frightened Horton into running away from home, but that no rape, nor attempt to rape, was perpetrated upon Minerva Horton. The application for continuance and new trial set up that the testimony of Will Booth, if obtainable, would be the same as that of Becket and Chumley. The opinion otherwise discloses the substance of the proof.

D. M. Short & Son, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

On the eleventh day of November, 1886, the grand jury of Shelby county indicted the following-named persons for rape upon Minerva Horton, viz.: John Riden, Pedly Riden, James Riden, Bud McAdams, Henry Chumley, Henry Becket, Will Booth, and Wash Flournoy. On May 19, 1887, the case was called for trial, whereupon counsel for the state entered nolle prosequi as to Will Booth, Henry Becket, and Henry Chumley, and the defendant had these parties recognized as witnesses in his behalf. On May 20, 1887, the trial in fact began. On the morning of the next day appellant for the first time discovered that Will Booth had absented himself. He had an attachment promptly issued for the witness, returnable instanter. The attachment was returned not executed, because not found in the county. Appellant then moved to withdraw his announcement of ready for trial, setting forth the above facts, as well as what he expected to prove by Booth, in his application to continue. These motions were overruled, and a bill of exceptions was taken thereto. Being convicted, appellant, among other things, urged this in his motion for new trial. Minerva Horton, the prosecutrix, was the only witness to the rape. She swears positively to facts which, if true, make a plain case of rape. Now, the indictment alleges that Booth, Becket, Chumley, and Flournoy were guilty also of this offense; the charge against them, however, being dismissed. Minerva Horton does not implicate either of these parties, she swearing that the rape was committed by John Riden, Pedly Riden, Jim Riden, and the defendant.

In his application to withdraw the announcement, and continue the case, appellant swears that he expects to prove certain facts by Booth, who, it is alleged, was present at Horton's at the time of the supposed rape. If true, evidently these facts are material. The witness Chumley for the defendant, and Flournoy for the state, corroborate the facts proposed to be established by Will Booth. These two witnesses agree as far as they go. They agree that the party started together from Flournoy's house, and as to the persons accompanying the party, to-wit, Chumley, Jim Riden, Becket, and defendant. Appellant expected to prove by Will Booth that John and Pedly Riden were not in the crowd. This expected proof is rendered probably true, because Flournoy and Chumley swore they were not at Flournoy's house, the point from which the party started; and Chumley swore that they were not at Horton's with the persons who were there, he being one of the party.

Now, it must be borne in mind that the prosecutrix swears positively that John and Pedly Riden, with McAdams and Jim Riden, outraged her. By other witnesses very cogent facts are established, tending to show that John and Pedly Riden were not at Horton's on the night of the alleged rape. The...