Miller v. State

• Decision Date: 05 December 1923
• Docket Number: (No. 7510.)
• Citation: 256 S.W. 598
• Parties: MILLER v. STATE.
• Court: Texas Court of Criminal Appeals

256 S.W. 598

MILLER v. STATE.

(No. 7510.)

Court of Criminal Appeals of Texas.

December 5, 1923.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Harold Miller was convicted of rape, and he appeals. Reversed, and cause remanded.

Wynne & Wynne and Cooley & Crisp, all of Kaufman, for appellant.

H. R. Young, Co. Atty., of Kaufman, Thos. R. Bond, of Terrell, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Rape is the offense; punishment fixed at confinement in the penitentiary for a period of 7 years.

This is the state's theory: Anna Shipley, a girl 17 years and 10 months of age, while in an automobile with the appellant alone at night on a country road, was ravished by force. At the time they were sitting upon the front seat of the car, and the act was accomplished, despite the utmost endeavor of the prosecutrix to prevent it.

It was the appellant's theory that the act was committed with the consent and co-operation of the prosecutrix.

Both rape by force and by consent were embraced in the indictment in separate counts. The court submitted to the jury only the count containing the averment that the prosecutrix was under the age of consent. The statute declares that —

"If the woman is fifteen years of age or over, the defendant may show in consent cases, she was not of previous chaste character as a defense." Vernon's Ann. Pen. Code Supp. 1922, art. 1063.

The appellant affirms and the state denies that the evidence was such as demanded an instruction to the jury in accord with the phase of the statute mentioned. The refusal of the court to do so is properly before this court for review.

That the act of intercourse took place is not in dispute. The evidence of the prosecutrix very cogently points to her consent, so cogently in fact that the learned trial judge refrained from submitting to the jury the issue of force. Supporting the state's theory that the court properly pretermitted the charge on the subject of previous chaste character of the prosecutrix, the record reveals the following: The specific testimony of the prosecutrix that she did not consent; the pain and hemorrhage resulting from the act; the revealing of the facts to her mother; the production of her garments stained with blood; the declarations of the physicians that the hymen was ruptured; and that the presence of blood indicated virginity immediately preceding the present act. Supporting the appellant's theory that the issue of previous unchaste character was raised, the record reveals these facts: The probability of consent and the improbability of force; the testimony to the effect that the accused embraced and kissed and fondled the prosecutrix on his first visit to her; that the act of intercourse occurred on his third outing; his testimony corroborated by the admissions of the prosecutrix to the effect that prior to the act they were together in an automobile, stationary along the public road where other cars were passing frequently; that after the act was committed, the prosecutrix and the appellant took a long ride about the town of Terrell, and that no outcry was made; that upon reaching her home late in the night, she made no immediate complaint, but, according to the appellant, called him to kiss her goodbye. The evidence suggests that the condition of her apparel, in connection with the lateness of the hour of her return, aroused her mother's suspicion, and that the admission of the prosecutrix was not a voluntary disclosure of her relations with the appellant, but was brought about by the insistence of her mother, fortified by the condition of the apparel of the prosecutrix.

The date of the transaction was June 4th. On June 2d, the prosecutrix wrote a letter to the appellant, which contained many protestations of affection, from which the following quotation is taken:

"Listen, Harold, the next time you and Earl have a date with Jonnie and I, we will go from home in your car, and then Earl can get a car for them, so we can be all by ourselves, understand? I'm sure Jonnie and Earl had rather be alone. Also. I'm sure we all would enjoy ourselves much more."

The prosecutrix testified on cross-examination that she had had sweethearts on several occasions to whom she was not engaged; that she was not engaged to be married to the appellant. She named these other sweethearts, and also testified that on various occasions she had kissed them, and put her arms around them and loved them; that this occurred both at home and out on the roads while they were in an automobile,—sometimes when the car was moving, and others when it was stopped; that she loved these boys at the time she hugged and kissed them. She also testified that she had kissed the appellant, and suffered him to kiss her on several occasions; that she had put her arms around him for the purpose of loving him; that this had occurred on various occasions, both at home and in the automobile. There was evidence from the appellant that, before the act of intercourse, they sat together in the automobile; that they engaged in hugging and kissing each other for some time. This, too, was corroborated by the testimony of the prosecutrix.

Touching the evidence on the issue of chastity, one of the greatest American jurists put the rule thus:

"But while the jury have no right or power to decide that a virgin is not a virtuous woman, it is their province, and theirs alone, to decide from the evidence whether the female alleged to have been seduced was a virgin at the time she yielded her person to the accused. And upon this question, all facts and circumstances tending to show a debauched mind, such as lewd conduct and behavior before that time, may be considered; for the jury need not have direct or positive evidence of her previous connection with some other person, but only such evidence as satisfies them that she had parted with her virginity. * * * The jury should...