Pridemore v. State

• Decision Date: 15 June 1910
• Parties: PRIDEMORE v. STATE.
• Court: Texas Court of Criminal Appeals

129 S.W. 1112

PRIDEMORE v. STATE.

Court of Criminal Appeals of Texas.

June 15, 1910.

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

George Pridemore was convicted of incest, and he appeals. Reversed and remanded.

John A. Mobley, Asst. Atty. Gen., for the State.

COBB, Special Judge.

In this case it is charged that appellant on November 10, 1905, had carnal knowledge of his daughter, Myrtle Pridemore. In due time he was prosecuted and convicted, and has appealed to this court, and the action and judgment of the court below he has assailed in assignments of error which we proceed to consider.

1. The first assignment of error complains of proof of acts of intercourse subsequent to the one act charged in the indictment. The second assignment of error is upon the admission of evidence of acts of intercourse prior to the act charged. The third relates to the refusal to withdraw the testimony complained of in the first and second. The ground taken by appellant is that since prosecutrix had testified to a distinct and complete act of intercourse occurring in December, 1904, proof of neither prior nor subsequent acts was allowable, because such proof did not throw light on the proven act, was not necessary to show its completeness, was not res gestæ, and was irrelevant and prejudicial. The objection to the evidence of prior and subsequent transactions was duly taken and bills of exception reserved.

Myrtle Webb, née Pridemore, testified that she was at the time of the trial 20 years old; that in the fall of 1904 she, her brother Cleve, and her father, appellant, were picking cotton; that she and her father went across eight or ten rows from those they were picking; and that he there did the act. She further testified, over appellant's objection, that he had had intercourse with her first when she was 12 years old and had continued to do so from time to time until she married the 8th of April, 1906. Cleve Pridemore testified in explicit terms to the same cotton patch transaction. The question is by the record pointedly presented, and no other will be considered: Is it permissible in incest, where one specific act is clearly singled out by the testimony of the female accomplice, and there is corroboration of her testimony as to such act, to prove antecedent or subsequent acts of intercourse with the party charged? We premise a discussion of some general provisions of our Penal Code. Article 3 of the Penal Code of 1895: "In order that the system of penal law in force in this state may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense and a penalty is affixed thereto by the written law of this state." Article 9 of the Penal Code: "This Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and upon other subjects and no person shall be punished for an offense which is not made penal by the plain import of the words of a law." Article 439, subd. 7, of the Code of Criminal Procedure of 1895, reads as follows: "The offense must be set forth in plain and intelligible words." Article 440 of the Code of Criminal Procedure reads as follows: "Everything should be stated in an indictment which it is necessary to prove, but that which is not necessary to prove need not be stated."

It is provided by the terms of articles 349 and 350, Pen. Code 1895, that if a man carnally know his daughter he should be punished by imprisonment in the penitentiary. The act here denounced is that of sexual intercourse. Is it to be inferred from the words used that, though there be many separate such acts extending over a period of years, there is but one offense, or was each several act in itself a complete offense? This question needs no answer. If, then, each act is a separate offense complete in itself, independent of what may have preceded or may follow it, upon what ground can it be claimed that proof of acts other than the one charged may be introduced? It is fundamental law that all the elements of a cause of action, civil or criminal, shall appear in the pleadings, and that what needs not be alleged shall not be proved except the proffered fact be relevant to an issue made by the pleadings or bear upon the credibility of relevant testimony. Testimony that neither tends to affirm or negative, aid or rebut an issue made by the pleadings, nor to sustain or impair the evidence directly relevant to the issues made by the pleadings, ought not to be received where the doctrine that the allegation and proof must correspond obtains. It is insisted by some that, as proof of other acts tends to render more probable the commission of the certain act charged, it ought therefore to be allowed. This contention proves too much, and, if applied in the administration of our penal laws, we must abandon our system and adopt that prevailing in parts of continental Europe and inquire into the entire antecedence...