McDuff v. State
| Decision Date | 24 March 1926 |
| Docket Number | (No. 8605.) |
| Citation | 281 S.W. 1073 |
| Parties | McDUFF v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Dickens County; J. H. Milam, Judge.
Bill McDuff was convicted of rape, and he appeals. Reversed and remanded.
G. E. Hamilton, of Matador, and Chas. L. Black, of Austin, for appellant.
Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of Austin, for the State.
The offense is rape, and the punishment is ten years in the penitentiary.
The state's testimony is sufficient to show that the appellant had intercourse with the prosecutrix, and at the time of so doing she was under 18 years of age and was not the wife of appellant. The appellant defended on the ground that the prosecutrix was more than 15 years of age at the time of the alleged rape, and that she was not a female of chaste character, and on this issue appellant presented much pertinent testimony.
Appellant complains at the action of the court in permitting the state on direct examination of the prosecuting witness to prove by her that the appellant had a wife and two children. The authorities in this state seem to be clear to the effect that it is not permissible in a rape case to prove that an appellant is a married man and that he has children. Smith v. State, 68 S. W. 995, 44 Tex. Cr. R. 137, 100 Am. St. Rep. 849; Smith v. State (Tex. Cr. App.) 74 S. W. 556; Wilkerson v. State, 131 S. W. 1108, 60 Tex. Cr. R. 388, Ann. Cas. 1912C, 126.
There is a rather loose statement in the case of Smith v. State, 188 S. W. 984, 80 Tex. Cr. R. 82, announcing a contrary doctrine, but in this last case testimony showing that the appellant was married to another woman was held permissible, "as it was necessary to be shown that he was not married to the prosecuting witness." In this case no such issue is raised. There was no pretense or suggestion that appellant was married to the prosecutrix in this case, and no necessity for showing that he was married to some other woman, in order to meet this issue.
The state in this case, however, while conceding that the testimony was improperly admitted, contends that it was probably harmless, in view of the fact that appellant afterwards showed that he was married and had two children. The difficulty about the state's position is that this testimony by appellant was offered after he had objected to the state going into this matter and after he had had his objections overruled and after prosecutrix had already been permitted to testify that he had a wife and two children. This would rather come under the rule that, when improper testimony is admitted by the state, it is usually not cured because appellant offers other testimony along the...
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Mackin v. State
...would support the findings: Hardy v. State, Tex.Cr.App., 13 S.W. 1008; Black v. State, 79 Tex.Cr.R. 628, 187 S.W. 332; McDuff v. State, 103 Tex.Cr.or. 668, 281 S.W. 1073; Dowd v. State, 104 Tex.Cr.R. 480, 284 S.W. 592; Rushing v. State, 139 Tex.Cr.R. 502, 141 S.W.2d 607; Jones v. State, 151......
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...as to whether such error was waived and rendered harmless by the testimony of appellant on the same subject. In McDuff v. State, 103 Tex.Cr.R. 668, 281 S.W. 1073, a rape case where the State had erroneously proved that defendant had a wife and two children, and he afterwards testified to th......
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