Mann v. State
| Decision Date | 01 January 1876 |
| Citation | 44 Tex. 642 |
| Parties | AUGUST MANN v. THE STATE. |
| Court | Texas Supreme Court |
APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.
The appellant was convicted of rape upon Teresa Lotke, a girl of about twelve years of age, and daughter of a woman with whom he had been living for several years as man and wife.
On the trial Teresa appeared as witness; was much excited when placed on the witness stand; at first declared that the accused had never injured her. Being again examined by direct questions, facts showing the guilt of the accused were elicited. The mother testified that her daughter had complained to her on the day of the alleged offense, but had at other times come to her with complaints.
Two physicians were examined. Their evidence was contradictory as to whether the person of the prosecutor had been violated, both having made examination.
In support of a motion for new trial the girl Teresa made affidavit that her first statement was correct, and that her answers subsequently given were from ignorance of their effect, and that they were incorrect. Her mother, by affidavit, stated that she was unreliable.
The motion for new trial was overruled, and defendant appealed.
Waitz & Olfson, for appellant.
George Clark, Attorney General, for the State.
The Code of Criminal Procedure, following the common law, provides that “the husband and wife can in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.” (Paschal's Dig., art. 3113.) There is nothing in the language of the code to justify the extension of this prohibition beyond its terms or beyond the common-law rule, so as to embrace parties who, though never legally married, in violation of law lived together and recognized each other as husband and wife.
It follows that the objection to the competency of Mrs. Lotke or Mrs. Mann was properly overruled.
The court did not err in permitting leading questions to the witness, Teresa Lotke, under the circumstances stated in the bill of exceptions. It is a matter much within the discretion of the court, and in this case we see no reason to hold that this discretion was not properly exercised.
The charge of the court was explicit, full, and fair, and, indeed, has not been objected to.
We think, however, that a new trial should have been granted.
Looking to the fact that without the testimony of Teresa Lotke no case is made out against the defendant; that on the stand she at first wholly exculpated him from the crime; that her testimony inculpating the...
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Brown v. State
...a new trial. New trials have frequently been granted upon the showing made in this case. Bussey v. State, 69 Ark. 545, 64 S.W. 268; Mann v. State, 44 Tex. 642; Bates v. State (Miss), 32 South. 915; Dennis v. State, 103 Ind. 142, 2 N.E. 349; State v. Moberly, 121 Mo. 604, 26 S.W.Martin v. Un......
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Keeter v. State
...a new jury to pass on the child prosecutrix's credibility."). This Court's predecessor recognized this very same principle in Mann v. State, 44 Tex. 642 (1876). There the Texas Supreme Court held that where the main prosecuting witness recanted, "the guilt of the appellant was left too unce......
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Myers v. State
...trial should have been granted on account of newly discovered evidence. 69 Ark. 545; 91 Ark. 492-497; 96 Ark. 400; 67 Ga. 572; 60 Ga. 210; 44 Tex. 642; 98 P.741; 26 364; 94 Mo. 315; 77 Mo. 267; 2 N.E. 349; 29 N.W. 264; 131 F. 378; 104 Ill. 385; 3 S.W. 397; 18 S.E. 303; 58 S.W. 131; 54 Ga. 5......
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