Patterson v. State

• Citation: 140 S.W. 1128
• Parties: PATTERSON v. STATE.
• Decision Date: 18 October 1911
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

140 S.W. 1128

PATTERSON v. STATE.

Court of Criminal Appeals of Texas.

October 18, 1911.

Rehearing Denied November 15, 1911.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Alex. Patterson was convicted of rape, and he appeals. Affirmed.

Hous Lee and Taylor & Lipscomb, for appellant. C. E. Lane, Asst. Atty. Gen., and McGrady & McMahon, for the State.

PRENDERGAST, J.

At the August term of the district court of Fannin county the appellant was indicted for rape upon Georgia Green by force, threats, and fraud. He was tried on September 9, 1910, convicted, and given a term of 10 years confinement in the penitentiary.

We deem it unnecessary to recite at any length the testimony in this case. There were some contradictions of the state's testimony, some impeachment of some of the witnesses, and more or less supporting testimony and circumstances of the state witnesses. The appellant admitted having intercourse with the alleged injured party, but testified and claimed that it was done with her consent, that she made no resistance, and that it was in accordance with a previous agreement between them. All of these matters were for the jury and the lower court. From the testimony, which the jury was fully authorized to believe and doubtless did believe, we, however, make this brief statement from the testimony:

Georgia Green, the raped person, and her husband, lived about three miles from the appellant. They were all negroes. A son of the appellant on or about June 1, 1909, the time of the rape, a lad not grown, ran away from his father. The appellant hunted for him some during that day. On the night of the rape, perhaps about midnight or a little earlier, the appellant went to the house of Green and his wife, and called Green, the husband, out. The family had gone to bed and were asleep. Upon Green, the husband, coming out into the hall of his house, the appellant told him about his boy having run away, and wanted to know of Green if he would not go that night to the constable and get the constable to catch his boy, and prevent his leaving the county on the train. After some negotiations and hesitancy, Green agreed to do so, and did do so, leaving some half hour after appellant first went to his house and woke him up. The appellant told Green as a reason why he did not go himself, instead of getting Green to go, was that he was sick and not able to go, and had been riding all that night, and had a rising on him, and could not ride any longer. The appellant was not sick, was in fact able to go himself, and had no boils on him. He made these representations to Green to induce Green to leave his house so that he could, after Green got away, have intercourse with his, Green's, wife. As Green left as the messenger of the appellant, the appellant at the same time left Green's house, they going in opposite directions, the appellant towards his own home, and Green towards the constable's. Some time after Green had gone, the woman stating it was about two hours, and the appellant himself stating it was 20 or 30 minutes, the appellant returned to Green's house, went up to the house, and called the woman. She was then in bed with her children. She then had six young children, the oldest about eight years old, and the youngest an infant about nine months old. When the appellant called her, she got up from the bed, went to the door, it being fastened on the inside with a latch, raised the latch, and partially opened the door. The appellant then asked her if her husband had returned. She replied that he had not; that he had not had time. By this time the appellant was at the door himself. The Green house had four rooms to it, three in a row on the west side, including a kitchen, and dining room on the ell, and the main room, where the woman and two of her children were sleeping. No one was in the room on the east side, but there was a bed therein. The woman was a small sickly woman, and weighed only about 95 to 98 pounds, was subject to asthma, and was somewhat sick and suffering from it that night. Appellant was a large, heavy, robust man, weighing about 200 pounds. When appellant got to the door and got in it, he asked the woman if she would not be his friend, and let him have intercourse with her. She refused, and protested that she would not do a thing of that kind. All of her children were then asleep, and had not awakened either then or at the time the appellant first came and got her husband to go and see the constable. The appellant grasped the woman at the bed, lifted her off of the floor, she protesting, and calling to her oldest child, "Sister, Sister," and continued calling in this way across the hall and after the appellant had gotten her into the east room and closed the door. As he carried her out of the room where she had been sleeping, he closed that door. The woman called and holloed and fought the appellant, and resisted him continuously from the time he first picked her up until after he had accomplished his purpose and satisfied his lust. When he first took her into the east room, he put her on the bed, got on her, and attempted to accomplish his purpose then. The slats of the bed, however, fell, and he got up from there with her, attempted to force her across his lap, while he sat on the edge of a trunk, and, failing to accomplish his purpose there, put his arm around her, forced her limbs apart, and accomplished his purpose as stated above. She fought him and protested and cried, and resisted, and called during all of the time and until she was completely exhausted. After accomplishing his purpose, he left Green's. The woman thereupon dressed, woke up some of her children, and took her little boy about daylight with her down the road for the purpose of meeting and telling her husband. The husband, finally returning home, met her where she was waiting for him about a half mile from his home. She then and there told him what the appellant had done and the circumstances attending the matter. Her husband was afraid of appellant, and was a coward. However, he went within a day or two or a few days, perhaps the same day, to some of the white people of the neighborhood, and told them of the circumstances. The woman wanted to proceed at once, and have the appellant arrested, but some of the white neighbors, among them the deputy sheriff, advised them not to do this, but to await the convening of the grand jury at the next term of court, and present the matter to the grand jury. However, it seems to have been talked about in the neighborhood and told by the woman and her husband to such an extent that some ten days or two weeks after the rape the woman filed a complaint before the justice of the peace, who had the appellant arrested, and made an investigation of the case. An examining trial was held, and the testimony of the witnesses then taken down. After the appellant was indicted and about a year before his last trial and conviction he was tried in the district court with what result the record does not disclose. It is unnecessary for us to go through the details of the testimony of how the appellant attempted to force sexual intercourse with the woman; but repeated efforts were made and various positions were assumed at the time before he accomplished his purpose.

A motion was made by the appellant to quash the indictment on the grounds: First. It does not appear from the face of the indictment that an offense against the law had been committed by the defendant. Second. Said indictment, since it was found by a grand jury and presented and filed in court, has been, over the objection of the defendant, changed, altered, and marred. Third. Because said indictment as it now stands is not the action of the grand jury. Fourth. Because the same contains no accusation of any grand jury charging that this defendant committed any offense against the laws of the state.

The indictment, as shown by the record, is of the approved forms universally held sufficient by this court, and follows the statute. After the necessary preliminary allegations as to the grand jury, county, etc., it charges "that Alex. Patterson, heretofore, viz., on or about the 2nd day of June, in the year of our Lord one thousand nine hundred and nine (1909), in the county of Fannin, state of Texas, did then and there unlawfully make an assault in and upon Georgia Green, a woman, and did then and there, by force, threats, and fraud, violently ravish and have carnal knowledge of her, the said Georgia Green, without her consent, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." In this same connection we will consider appellant's bill of exception No. 12, which shows "that at the August term of the district court there was entered in the minutes of the court an order in this cause dated September 17, 1909, which recited that the state appeared by her district attorney and the defendant appeared in person and by his attorney, and thereupon the defendant, by counsel, suggested in open court that he bore a different name from that stated in the indictment, and that his true name is `Alexander Patterson'; that the style of this cause be changed; that the style of the case was thereupon ordered changed by the court so as to give his true name, and that the cause proceed as if the true name `Alexander Patterson' had been first recited in the indictment." The order further recites that at the same term of the court on that same day the defendant appeared in court in person and by counsel, and presented in writing a motion for a first continuance, signed in person by him, wherein he alleged "that the defendant is not named `E. Patterson,' but is named `Alex. Patterson,'" that his true name was "Alex. Patterson," and not "E. Patterson" as indicted. Thereupon the court asked the defendant in person if his true name was "Alex. Patterson," and not "E. Patterson," to which...