Melton v. State

• Decision Date: 02 April 1913
• Parties: MELTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 550

158 S.W. 550

MELTON v. STATE.

Court of Criminal Appeals of Texas.

April 2, 1913.

On Motion for Rehearing, June 18, 1913.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Bird Melton was convicted of the crime of rape, and he appeals. Affirmed.

J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

By a proper count which alone was submitted to the jury, appellant was indicted for rape, alleged to have been committed on Annie Clarkson in Eastland county, Tex., on October 9, 1911, by force, threat, and fraud. He was convicted, and his penalty fixed at five years' confinement in the penitentiary, the lowest prescribed by law.

Annie Clarkson was a girl about 15 years old at the time this offense is charged to have been committed and lived with her parents. Her parents were tenant farmers, living in a small house on a farm in Palo Pinto county. Not a great while before this he had lived for several years in Eastland county, and prior to that in other counties in the state. Appellant was a young man who boarded with her family for a few months just prior to the alleged commission of this offense, and while with the family he courted and became engaged to be married to Annie some three months prior to this offense. He had formerly, at some time, been married to another woman. Annie and her family knew this. He told Annie, however, that he had been divorced from that wife. A few days before the time of this offense he and Annie, together with her brother and sister just older than she, went in a wagon from her father's in Palo Pinto county to her uncle's, living in Eastland county. Appellant's parents also lived in Eastland county. They reached her uncle's in Eastland county Sunday morning about an hour by sun; it was arranged between Annie and appellant that they would be married in Eastland county at or near her old home, where she and her parents had formerly lived. After they reached her uncle's, appellant left them, and claimed he went to his father's. When he returned to Annie at her uncle's, he reached her about an hour by sun Monday evening. They then started to return to her parents, the same said four persons, and went by or to the place in Eastland county where she and her parents had formerly lived. Appellant claimed and told her he had procured a license to marry her at Eastland, and had arranged to have a preacher to meet them near her old home and to perform the marriage ceremony. When they reached a point near her former home, appellant had the wagon stopped, got out, and went back out of sight of the others for some distance, and was gone several minutes; the witnesses differing as to time from 10 to 30 minutes. He then returned to the wagon, told Annie to get out and go with him, which she did, leaving her brother and sister. Appellant took her back some hundred yards out of sight of her brother and sister, met a person whom he claimed was a preacher, and who performed the ceremony and pronounced them man and wife. This was at night, a moonlight night. They then returned to the wagon, told her brother and sister that they had just been married, and they drove on a few miles, when they stopped and stayed all night. They made up a fire on the ground, the brother slept on the wagon seat at the fire, his unmarried sister in their wagon in which they were traveling, and appellant and Annie went into the field of someone and occupied a wagon that was in that field, in which there was some seed cotton. They remained there all night.

The record shows clearly that Annie was an ignorant country girl, and her testimony indicates that she was not at all bright or smart. Appellant did not testify. Annie testified and showed that she believed he had procured a license, as he told her he had, and that they had been legally and properly married by said person on that night. She testified that while they stayed alone together in the wagon that night he kissed her and fondled her person and had his hands on her, but that he did not that night have sexual intercourse with her; that the next day they continued their journey, reaching her parent's, where they announced their marriage, and that they occupied a bed and room at her parents' that night, and for a short time afterwards, and that that night he did have sexual intercourse with her; that they stayed with her parents only for a short time, and then removed elsewhere in Palo Pinto county, and lived as husband and wife for several months, she fully believing they were lawfully husband and wife; that she would not have permitted appellant to have had intercourse with her at any time if she had not believed that she was properly married to him. It was shown that appellant had procured no license at Eastland to marry her; that his wife or former wife was still living; that he denied to his brothers that he was married to Annie.

Practically the sole question of any moment in this case is whether or not the evidence was sufficient to show that appellant had sexual intercourse with Annie in the wagon where they remained the first night after he married her in Eastland county. The court charged on circumstantial evidence. We take it that because of the ignorance and inexperience of said witness Annie she would cross herself in her own testimony; but the jury who saw and heard her, and who saw and heard the manner of her examination and cross-examination, were the judges exclusively of her credibility and the weight of her evidence. The whole record shows that appellant, who was a married man, deceived this girl and her whole family, claiming that he had been divorced from his wife, or previous wife. He was not living with her at that time, and had not been for several months before. As a matter of fact, he was still married to that previous wife. He courted Annie and became engaged to be married to her, and evidently deceived her and had this mock marriage by an assumed preacher for the sole purpose of inducing this girl to have intercourse with him, and he thereby accomplished his purpose. It is apparent from the record that he had failed otherwise to have sexual intercourse with her. While the girl denied that he had sexual intercourse with her that first night, the court having properly charged on circumstantial evidence, it was a question for the jury whether or not, notwithstanding her denial, he had sexual intercourse with her that night. The jury was composed of 12 fair and impartial jurors, doubtless of different ages and businesses and at different locations in the county. They saw and heard all the witnesses. Appellant was, of course, before them during the whole trial. They reached the conclusion that he had sexual intercourse with this girl that first night. Under the circumstances it would stagger human credulity, and would be the reverse of what every man knows to be human nature, if under the circumstances he did not have sexual intercourse with her that night. In our opinion the evidence was amply sufficient to justify the jury to believe and find, as they did, that he did have sexual intercourse with her that night. Where they stayed that night was clearly shown to be in Eastland county. Word v. State, 12 Tex. App. 183; Price v. State, 18 Tex. App. 474, 51 Am. Rep. 322.

Any fact which can be established by direct, can also be established by circumstantial, evidence. The circumstances proven in this case, together with the knowledge of human nature, is amply sufficient to authorize the jury to find that appellant had sexual intercourse with said Annie Clarkson, notwithstanding she testified he did not on said first night. It would, at least, be no more than one testifying he did not, while another, with equal, or like opportunity, testified he did. She testified he did not. The circumstances unerringly testified, or authorized the jury to find, he did.

Even if we should not be correct in this, then our venue statute as to this offense is to this effect: Prosecutions can be carried on, first, in the county where committed; second, in any county of the judicial district; and third, in any county of the judicial district the judge of which resides nearest the county seat of the county in which the offense is committed. The evidence, without doubt and overwhelmingly, established appellant had sexual intercourse with said girl in Palo Pinto county, if not, or in addition, to having done so in Eastland county, or without reference to Eastland county. There being nothing to the contrary on this question of venue, it must be determined that Judge Blanton was the judge nearest the county seat of Palo Pinto county; and, Eastland county being in his district and adjoining Palo Pinto, the case was properly tried by him in Eastland county. So that in either event the venue was in Eastland county. Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780.

The court submitted a full, fair, and apt charge on every issue in the case. His charge follows and is substantially what was given in Lee v. State, 44 Tex. Cr. R. 354, 72 S. W. 1005, 61 L. R. A. 904, and Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 1912C, 126, which were expressly approved by this court. In addition the court gave appellant's special charge to the effect: "Unless you find from the evidence that the defendant did not marry Annie Clarkson, you will acquit him." The court in his charge expressly required the jury to believe beyond a reasonable doubt that the appellant had sexual intercourse with said Annie in Eastland county, Tex., and that his private male organ penetrated the private female organ of said Annie, before they could convict him. Hence the court did not err in refusing to give appellant's special requested charges on these subjects, because the court had clearly embraced them all in his main charge.

The evidence did not show that said Annie was an...