Magee v. State

• Decision Date: 10 June 1914
• Docket Number: (No. 3164.)
• Citation: 168 S.W. 96
• Parties: MAGEE v. STATE.
• Court: Texas Court of Criminal Appeals

168 S.W. 96

MAGEE v. STATE.

(No. 3164.)

Court of Criminal Appeals of Texas.

June 10, 1914.

Rehearing Denied June 26, 1914.

Appeal from District Court, Montague County; R. H. Buck, Judge.

Burnam Magee was convicted of rape on a girl under 15 years of age, and he appeals. Affirmed.

W. S. Jameson, of Montague, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of rape on a girl under 15 years of age, and his punishment assessed at 5 years' confinement in the state penitentiary.

There are but two bills of exceptions in the record; the first complaining that the court erred in not permitting counsel to ask the witness John Magee what was the understanding, rumor, and general talk in the Blackburn family as regards the girl's age. In approving the bill the court says that:

"The witness had already testified fully and freely as to his knowledge from the understanding and general repute in the family, and that the girl would be 17 her next birthday, and the court sustained the objection on the ground that it would be but a repetition."

As thus qualified the bill presents no error.

The other bill complains that while cross-examining Elmer Cunningham the state was permitted to elicit from the witness that he had been in jail in Oklahoma charged with "bootlegging" — a term sometimes used for illegally selling intoxicating liquor in prohibition territory. In approving the bill the court says:

"The witness having testified to a statement of Ethel Austin, as to her age, tending to show that she was over the age of consent at the time of the alleged offense, he stating that the time of said statement was in the summer time, for the purpose of showing that he was and could not have been present at the time and place of the alleged conversation with Ethel Austin as to her age, the state was permitted to ask him if he was in jail in Oklahoma serving a sentence for bootlegging during the months of June, July, and August, 1911, the same summer in which he claimed to have heard the statement alleged to have been made by Ethel Austin."

Under such a state of facts the court did not err in admitting the testimony.

The only other matter presented by the record that need be mentioned is an allegation in the motion for new trial; it being the contention that "the defendant has learned that he can prove by the father of the girl that she was 15 years of age on March 3d prior to the date of the alleged...