Monroe v. State
Decision Date | 16 June 1926 |
Docket Number | (No. 9962.) |
Citation | 289 S.W. 686 |
Parties | MONROE v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Knox County; J. H. Milam, Judge.
H. B. Monroe was convicted of rape, and he appeals. Reversed and remanded.
Stinson, Coombes & Brooks, of Abilene, and Jas. A. Stephens, of Benjamin, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.
Conviction in district court of Knox county of rape; punishment fixed at five years in the penitentiary.
Prosecutrix swore to an act of intercourse with appellant at his place of business on March 9th. She was not quite 15 years of age at the time. She said a Mrs. Burroughs was present, and that at first she did not agree to have intercourse with appellant, and when he would turn the lights off in the building she would turn them on. The act occurred after 12 o'clock at night. The Burroughs woman corroborated prosecutrix. Elliott, a night watchman, said that his attention was attracted by hearing the talking of a man and one or two women in appellant's place of business at a late hour of the night. The lights would be turned off and then on and off again. He tried the doors but found them locked. He watched and saw appellant, the Burroughs woman, and prosecutrix come out. It was about 1:20 a. m. A Mr. Moore was with Elliott and told substantially the same story.
Appellant took the witness stand in his own behalf and admitted that the Burroughs woman and prosecutrix were at his place on the night mentioned from about 11:30 until after 1 o'clock. Mr. Elliott was called to the stand by the state in rebuttal, and testified that about 20 minutes after the parties came out of appellant's place on said night prosecutrix told him that appellant had intercourse with her.
There are four bills of exception. The first asserts error in the refusal of the trial court to allow appellant to prove by a Mrs. Henderson that she was not present, at any time in February preceding the March mentioned, at appellant's place of business when he took prosecutrix into a side room and had intercourse with her. This testimony was properly rejected. The state had proved by prosecutrix only the act of March 9th, on which it relied for a conviction. In appellant's cross-examination he asked prosecutrix if she had any other connection with him at any other time, and she said she had, and detailed in response to appellant's questions, the surroundings and settings of an act which she said took place in February. She said that Mrs. Henderson was picking turkeys at appellant's place when he took prosecutrix into a side room and had intercourse with her in February. The attempted impeachment by Mrs. Henderson was on an immaterial and collateral matter which had been brought out by appellant himself on cross-examination. Drake v. State, 29 Tex. App. 270, 15 S. W. 725; Wilson v. State, 37 Tex. Cr. R. 69, 38 S. W. 610; Brittain v. State, 47 Tex. Cr. R. 602, 85 S. W. 278. See, also, authorities cited in section 165, Branch's Annotated P. C.
Bill of exceptions No. 2 was reserved to argument of state's attorney, which, without setting it out, seems entirely within the record and not improper. Bill of exceptions No. 3 was taken to the rejection of testimony showing that prior to her alleged act of intercourse with appellant, prosecutrix had intercourse with another person. The charge here is rape by consent. In a case like the one before us this testimony would be inadmissible. Knowles v. State, 44 Tex. Cr. R. 325, 72 S. W. 398; Whitehead v. State, 61 Tex. Cr. R. 567, 137 S. W. 356.
The fourth bill of exceptions presents complaint of the refusal of appellant's motion for new trial based on the proposition of newly discovered testimony. The testimony of Mrs. Henderson was not newly discovered. She was present at court and was not interviewed. Acton v. State, 104 Tex. Cr. R. 75, 282 S. W. 805; Fisher v. State, 30 Tex. App. 502, 18 S. W. 90; Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322. The affidavits of other witnesses whose testimony was claimed to be newly discovered were attached to the motion, and showed that the new testimony was pertinent only for impeachment purposes. None of the same would have been admissible as original testimony. The state traversed the motion, and the court heard testimony. We think the action of the court in refusing the motion in accord with the authorities, Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649; Holt v. State, 39 Tex. Cr. R. 282, 45 S. W. 1016, 46 S. W. 829; Morris v. State, 57 Tex. Cr. R. 163, 121 S. W. 1112; also authorities cited in Branch's Annotated P. C. § 202. Cottrell v. State, 91 Tex. Cr. R. 131, 237 S. W. 928, was relied on by appellant, and also Lusty v. State, 97 Tex. Cr. R. 167, 261 S. W. 775. An inspection of the record shows that in this case the state did not rely alone on the testimony of prosecutrix, nor was there any evidence introduced as to a physical examination made of her. She was abundantly corroborated, and the question of the sufficiency thereof was wholly for the jury. In this connection we also note that the lowest penalty was given the appellant.
Finding no error in the record, the judgment will be affirmed.
On Motion for Rehearing.
Concerning the bill of exceptions which relates to the refusal of a new trial upon the ground of newly discovered evidence, we make the following statement in addition to those contained in the original opinion in this case:
According to the affidavit of one of the attorneys for the appellant, he interviewed the prosecutrix before she gave her testimony, and was told by her that there had been but one act of intercourse between her and the appellant. When testifying as a witness, she related that an act of intercourse had taken place between her and the appellant in the presence of Mrs. Burroughs on March 9th, as stated in the original opinion. On cross-examination, she was asked if it was not a fact that, save in the one instance to which she had given testimony in the direct examination, appellant had never mistreated her, to which she replied that the appellant had intercourse with her in February preceding the act which she described in the direct examination, and further stated that this previous act took place at the home of the appellant; that Mrs. Winnie Henderson was present at the time when appellant took the prosecutrix into an adjoining room and had intercourse with her. Appellant's counsel declared that he was surprised at this testimony, that it was untrue, and asked for a subpœna for Mrs. Henderson in order that he might controvert the testimony last mentioned. When Mrs. Henderson arrived in obedience to the subpœna, counsel was informed by the court that her contradiction of the prosecutrix would not be received for the...
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