Miller v. State

• Decision Date: 15 December 1915
• Docket Number: (No. 3775.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 185 S.W. 29
• Parties: MILLER v. STATE.
• Court: Texas Court of Criminal Appeals

185 S.W. 29

MILLER v. STATE.

(No. 3775.)^*

Court of Criminal Appeals of Texas.

December 15, 1915.

Dissenting Opinion January 19, 1916.

Concurring Opinion February 7, 1916.

Appeal from District Court, Travis County; A. S. Fisher, Judge.

Kinney Miller was convicted of rape, and he appeals. Affirmed.

Warren W. Moore and Dickens & Dickens, all of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of the rape of a girl under 15 years of age, and his punishment assessed at the lowest authorized by law. The indictment is in strict accordance with the statute defining the offense (P. C. art. 1060), and follows the approved standard forms. The court committed no error in overruling appellant's motion to quash it.

The testimony established some of the material points without contradiction or contest. Some points were contested, and there was contradictory testimony on some of the material points, and there was some impeachment of some of the witnesses. However, with the positive and circumstantial evidence and the reasonable and legitimate deductions which the jury were authorized to draw and believe therefrom, the state's case was fully established by a considerable preponderance of the testimony. Strange to say, Zollie Jones' mother and father decidedly, were hostile to the state and in appellant's favor, and avoided testifying against him, and testified in his favor in any and every way they could, and she herself at first was. It is manifest from the whole testimony that after it was made known to the officers that appellant had probably committed the alleged offense he sought to get possession of the girl, and did what he could to get her mother and father in possession of her so that he could marry her, not in good faith, but to successfully prevent her testifying and his prosecution and conviction, and doubtless, if he or they could have succeeded in getting possession of her, he would have pursued this course successfully. However, when the officers and the Humane Society of Austin were made aware of appellant's and her parents' intentions, they proceeded to send the girl to a convent in San Antonio, and thereby prevent them from getting her and carrying out their plans. Her father or mother went so far as to sue out a writ of habeas corpus before the judge of the criminal district court of Travis county and have her brought back to Austin for a hearing. As soon as she was brought back, the district judge, being made aware of the situation, placed her in the custody of a trustworthy woman in Austin, and forbade access to her by appellant, her mother and father, and appellant's attorneys, except in the presence and control of the judge. But the judge, upon the application of appellant's attorneys, in his presence, permitted access to her so that they could, and did, get all necessary or proper information about witnesses in appellant's behalf. It was also contended by the state, and there was testimony supporting its contention, that appellant also attempted, and in a manner was about to succeed, in spiriting away some of the material witnesses to avoid their testimony and secure an acquittal on his trial. Zollie testified that at the time appellant had with her the interview at which her friend Agnes Watson was present he then tried to get her to stop the case, and Agnes at his instance also tried to get her to do so. She said:

"Mr. Miller said that, if I would stop it, he would pay us any amount of money and get us anything we wanted. * * * He said it did not matter how much."

Appellant and Miss Watson denied this. She further testified that he gave Agnes money at that time and sent by her money to Zollie's mother, and also that he bought, or promised to buy, Agnes a dress costing $18. In trying to get Zollie to leave she said appellant "said, if I wanted to leave, he would buy me a ticket anywhere I wanted to go." Appellant was arrested on complaint charging this offense in April, 1915, and released on bail. The grand jury convened in June following, and the indictment herein was filed June 10, 1915. His case was set for, and his trial began, on June 28, and was concluded and the verdict rendered June 30, 1915.

From all the testimony and legitimate and proper deductions therefrom, we will state substantially what the evidence clearly justified the jury to believe: Appellant was an unmarried man 36 years old. Continuously since 1900 he had been in the saloon business in Austin; several years previous to this offense in business for himself. During all this time he had his room where he stayed and slept at night, eating at restaurants and around wherever it suited his convenience. He kept and himself attended two horses belonging to him some blocks from his saloon, going back and forth for this purpose three times a day. Zollie Jones, the alleged raped girl, lived with her parents in a house which appellant had to pass in going back and forth attending to his horses. In that way, some two months before he committed the alleged offense herein on April 1, 1915, he saw this girl and became acquainted with her parents. Her parents were very poor people and so was she. They had nothing, and did not work, except at this time they were running a boarding house and taking some roomers. It was the theory of the state, and borne out by the testimony, that appellant's lustful passion became aroused by seeing this girl from time to time, and he set about to ensnare and ruin her. For that purpose he boarded with her parents for a month or two up to just before this offense was committed; and, although he kept his room as he had theretofore, he proceeded to sleep at her parents' house for about a week. During this time he was boarding and sleeping at this house he ingratiated himself into favor with the girl and her parents too. He began surreptitiously to get the girl to meet him in town away from her home and parents, and he took her buggy riding, both in daytime and at night, and when returning he would not take her to her home, but drop her out near there. The girl, Zollie, was then just a few months over 14 years of age and several months under 15. She testified positively that on one of these buggy trips in daytime he took her in South Austin to a secluded place off from the road, and not in sight from any residence, and accomplished her ruin, having complete sexual intercourse with her, on or about April 1, 1915. (She testified to two other acts by him, but this was excluded on his insistence.) The girl missed her menses, and concluded she was pregnant by him, and so informed him. At this time they met at night away from her home by appointment, it seems, to discuss the situation. The girl had had a confidential talk with a close girl friend of hers, and she had that girl friend to be present at this meeting. That girl friend, Agnes Watson, testified that in this interview appellant admitted and stated to her that he had had sexual intercourse with this girl, as claimed by her, and the girl testified that appellant, in substance, agreed to furnish the "stuff" to bring her menses on. Shortly before this illicit intercourse was had and up to that time appellant made her presents of money and of different articles of wearing apparel, among them a nice cloak, a nice dress, and other articles. Appellant admitted giving her said gifts of clothing, but denied positively that he ever had sexual intercourse with her at any time or place. The girl, however, was strongly corroborated by other facts and circumstances fully proven. We think it unnecessary to here give any further detail of the evidence.

The record is quite voluminous. Appellant has 26 bills of exception, some of them very lengthy. The court in approving several of them qualified and explained them. Appellant bitterly complains of this action of the court, claiming that at no time when he took his bills of exceptions did the court then state that he would qualify them, or how he would qualify them, in approving them. We have carefully examined the record and the court's qualification of these several bills. The court's action in every instance is borne out and in accordance with the record. It is true that in some instances injustice may be done an appellant by the trial judge in qualifying his bills, but we think in this instance no material injustice has been done appellant. It is not only proper, but necessary, in a great many instances, for the trial judge to explain and qualify bills so that this court in reviewing the question can more readily comprehend the point; and, in fact, it not only aids this court, but in most, if not all, instances, it is necessary to make such corrections and explanations so that the true point raised can be seen and passed upon, and not an incorrect one from the record. Of course, he cannot tell at the time of the exception whether he will qualify the bills. He can only know this when the bill is presented. We have carefully read and studied each of appellant's bills of exceptions and the record in connection therewith. It will not be necessary to take up each bill separately, but we will in some instances group, but upon the whole include all of them raising any material question.

Appellant made a motion for a continuance on account of the absence of numerous witnesses. The qualification to appellant's bill on this point shows, and so does the record, that all of the witnesses appeared in court pending the trial and were placed under the rule with the other witnesses, except Curley White and Tom Knight. The qualification of the bill as to them states that:

"Their testimony does not appear material, as it was upon the question of credibility of Zollie Jones; further, that Knight lived only 36 miles from Austin, and White lived in Austin. The diligence was not sufficient."

The record shows that the subpœna for these two witnesses was not issued...