Owens v. State

• Decision Date: 15 January 1896
• Citation: 33 S.W. 875
• Parties: OWENS v. STATE.
• Court: Texas Court of Criminal Appeals

33 S.W. 875

OWENS v. STATE.

Court of Criminal Appeals of Texas.

January 15, 1896.

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

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

Mann Trice, for the State.

HENDERSON, J.

The appellant in this case was tried under an indictment in four counts, two of which charged him with rape, and the other two with incest. He was convicted under the count charging him with rape, and his punishment assessed at death. From the judgment of the lower court he prosecutes this appeal.

Appellant filed a motion to quash the indictment on the ground that it charged separate and distinct felonies, and was duplicitous, because the counts in the indictment alleged the offenses to have been committed at different and distinct times. There are four counts in the indictment, the first two of which charged incest, and the third and fourth charged rape. At the trial the state dismissed the second and third counts, and prosecuted the defendant on the first and fourth counts. The first count charged "that on the 30th day of June, 1895, the defendant did unlawfully and carnally know Pearl Owens, the said Pearl Owens being then and there the daughter of him, the said Jay Owens." The fourth count charged "that the defendant on said 30th day of June, 1895, did then and there, unlawfully, in and upon Pearl Owens, a female child, make an assault, and did then and there, by threats and force, and without the consent of the said Pearl Owens, ravish and have carnal knowledge of the said Pearl Owens," etc. The two offenses are charged in distinct counts, and there is no duplicity in the charge. Although the offenses involve different punishments, they are of the same character; and if, in a case of this character, the proof had failed to show force sufficient to constitute the offense of rape, but had shown carnal intercourse between the parties, on proof of relationship, the party could be convicted of incest. Mr. Bishop says (Cr. Proc. vol. 2, § 975), "An indictment in two counts, one for rape, and the other for assault to commit rape, is not objectionable as charging two offenses." And it occurs to us that the same principle is applicable to the offenses of rape and incest. The same author above quoted says: "If the offenses are repugnant, or the trial or the judgment is incongruous, and calculated to deprive the defendant of his rights, or embarrass the court, the joinder will not be permitted. It is allowed where the offenses are in a kindred line, or where several counts are introduced for the purpose of meeting the evidence as it may transpire on the trial, all of the counts being for the same offense." Id. § 446. And in a Massachusetts case it is held "that the same count can include rape and incest, and the defendant can be convicted for either." See Com. v. Goodhue, 2 Metc. 193. In our opinion, there is no repugnance between the two counts in this indictment. They are both predicated upon the same transaction, and the court did not err in refusing to quash the indictment. Nor, in this case, can the appellant complain of the mode of trial. He was arraigned as for a capital felony, and tried by a special venire. This mode was applicable to one of the counts in the indictment. It was more liberal, in that it gave him more challenges than is allowed by law under the count for incest; and of this he would have no more right to complain than would a defendant charged with murder, and convicted of manslaughter, be heard to urge that he ought not to have been tried by a special venire.

In this case the appellant assigns as error the action of the court in permitting the state, on cross-examination of the defendant's witness Pate Chapman, to ask said witness if he, on a certain occasion, told one Bill Ratliff that the defendant, Owens, was going to pay witness three horses to "get him out," and, on his answering that he did not, then permitting the state to introduce the said Bill Ratliff, and to prove by him that said Chapman did tell him that the defendant had promised him three horses to get him cleared. Appellant saved an exception to this testimony. It will be observed that this testimony was adduced on cross-examination of the defendant's witness by the state. If admissible at all, it was only admissible as going to discredit the...