Owens v. State

Decision Date01 June 1898
PartiesOWENS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from district court, Williamson county; R. E. Brooks, Judge.

Jay Owens was convicted of rape, and appeals. Reversed.

Makemson & Fisher and R. A. John, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at imprisonment in the penitentiary for life; hence this appeal.

The indictment contained four counts,— the first for incest and the last for rape. The second and third counts were eliminated, and the case tried on the first and fourth counts, and the jury found him guilty, under the fourth count, for rape.

The proof on the part of the state showed that the prosecutrix, Pearl Owens, was the daughter of appellant, Jay Owens, and she was at the time of the alleged offense about 14 years of age. Her father lived on a farm in the country, and his family consisted of his wife, himself, and several children, among whom were the prosecutrix, Pearl Owens, and a son named Sam Owens. The prosecutrix testified to a number of acts of intercourse between her father and herself, stating that she was coerced to consent to copulate with him; that he threatened to kill her if she did not consent; that she was afraid of him. Prosecutrix testified specifically to an act of intercourse between Christmas and New Year of 1894. She said that it was in 1894 or 1895, she did not know which, but she was certain it was the time that Dorsey Taylor was living at her father's and working there. She also stated that her father had had intercourse with her about 15 times before that. She testified to several particular occasions,—one time when he took her out of the field into the woods. The Christmas she alludes to she states that she slept in the same room with her father and mother; that her mother was in the habit of going out and getting breakfast, and early one morning her mother went out in the cook room to get breakfast; that she was in her bed, and her father called her to come and get in bed with him; that she came, and he made her lie down on his bed with him, and that he copulated with her; that he made her lay still; that he pulled her hair and choked her; that after he got through she got up, and went and told her mother about it. Her brother Sam corroborates her as to this transaction. He also says that it was the time Dorsey Taylor was there. Dorsey Taylor was introduced, and testified that he was not there during Christmas, 1894 or 1895; that he came to Jay Owens' place in December of 1893, was there during Christmas, 1893, and remained there until March, 1894, when he went elsewhere to work, and he had not lived at Jay Owens' since; that he came by there once in the summer of 1894, on his way to Coleman county, and stayed all night there. Other witnesses testified for the defendant, and their evidence is to the effect that Dorsey Taylor was not at Jay Owens' during Christmas, 1894, and the early part of 1895. The testimony to this effect on the part of the defendant was so strong that the state admitted that Dorsey Taylor was not at Jay Owens' the Christmas of 1894, but was there the Christmas of 1893. The state then placed the prosecutrix back on the stand, and she testified that appellant was arrested in the summer of 1895, and that the act of intercourse about which she testified was the Christmas before that, which was the Christmas of 1894. The indictment was filed on the 10th of July, 1895; and the question of the date of the alleged offense becomes material, in view of the foregoing testimony on the point and the charge of the court on that subject.

On this point the court instructed the jury as follows: "The state has elected to rely for a conviction in this case upon the offense claimed by the state to have been committed by the defendant at his home in said Williamson county between December 25, 1894, and January 1, 1895. You are therefore instructed that the state is confined to said transaction for a conviction in this case, and the evidence introduced before you as to the commission, or attempted commission, of the offense of rape by the defendant upon any other occasion than that so relied upon by the state, which is between December 25, 1894, and January 1, 1895, will only be considered by you, together with all the other circumstances in the case, in determining the sufficiency of the force and threats used," etc. And again: "You cannot convict this defendant in this case, if at all, for any prosecution except that relied on by the state for a conviction, and claimed to have occurred between December 25, 1894, and January 1, 1895." And in another place: "The indictment in this case was filed in this court on July 10, 1895. Now, if you believe the transaction testified to by the witnesses Pearl and Sam Owens, as having occurred at defendant's home in Williamson county, on the date between December 25, 1894, and January 1, 1895, did occur as testified by said witnesses, but you further find that such transaction occurred between December 25, 1893, and January 1, 1894, instead of between December 25, 1894, and January 1, 1895, or if you have a reasonable doubt" on this subject, etc., "you will acquit the defendant." It is contended by appellant that these charges were on the weight of the testimony. For instance, it is contended by appellant that it was incompetent for the court to inform the jury that the state relied for a conviction upon the offense claimed to have been committed by the defendant, at his home in Williamson county, between December 25, 1894, and January 1, 1895; that same was a suggestion to the jury that the state's witnesses had unquestionably testified to that specific time, and was so a charge upon the weight of testimony. And appellant...

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13 cases
  • Miller v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 15, 1915
    ...495, 1 S. W. 454; James v. State, 40 Tex. Cr. R. 194, 49 S. W. 401; Unsell v. State, 39 Tex. Cr. R. 330, 45 S. W. 1022; Owens v. State, 39 Tex. Cr. R. 391, 46 S. W. 240; Welhousen v. State, 30 Tex. App. 626, 18 S. W. 300; Owen v. State, 58 Tex. Cr. R. 261, 125 S. W. 405; Johnson v. State, 4......
  • State v. Mackey
    • United States
    • North Dakota Supreme Court
    • June 23, 1915
    ... ... People, 96 Ill ... 492; Rice, Crim. Ev. 215; State v. Apley, 25 N.D ... 298, 48 L.R.A.(N.S.) 269, 141 N.W. 740; Richardson v ... Gage, 28 S.D. 390, 133 N.W. 692, Ann. Cas. 1914B, 534; ... Carroll v. State, 32 Tex. Crim. Rep. 431, 40 Am. St ... Rep. 786, 24 S.W. 100; Owens v. State, 39 Tex. Crim ... Rep. 391, 46 S.W. 240; Ball v. State, 44 Tex. Crim ... Rep. 489, 72 S.W. 384; Dabney v. State, 82 Miss ... 252, 33 So. 973; State v. Kent (State v. Pancoast) 5 ... N.D. 516, 35 L.R.A. 518, 67 N.W. 1052; Holder v ... State, 58 Ark. 473, 25 S.W. 279; ... ...
  • State v. Apley
    • United States
    • North Dakota Supreme Court
    • April 14, 1913
    ...87 Ill. 210; Hayward v. People, 96 Ill. 492; Rice, Crim. Ev. 215; Richardson v. Gage, 28 S.D. 390, 133 N.W. 692; Owens v. State, 39 Tex. Crim. App. 391, 46 S.W. 240; Ball v. State, 44 Tex. Crim. Rep. 489, 72 S.W. Dabney v. State, 82 Miss. 252, 33 So. 973. The general rule is against receivi......
  • State v. Dowell
    • United States
    • Idaho Supreme Court
    • April 3, 1929
    ... ... purpose of showing scheme, plan, design, knowledge, motive ... and intent to commit the act charged against appellant in the ... information. (Proper v. State, 85 Wis. 615, 55 N.W ... 1035; Underhill on Crim. Evidence, 3d ed., sec. 154; Webb ... v. State, 80 Tex. Cr. 1, 187 S.W. 485; Owens v. State, ... 39 Tex. Cr. 391, 46 S.W. 240.) ... A ... voluntary confession, freely made and without promises of ... immunity is admissible. (State v. Jeanoes, 36 Idaho ... 810, 213 P. 1017; State v. Nolan, 31 Idaho 71, 169 ... P. 295; State v. Andreason, 44 Idaho 396, 257 P ... ...
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