Reddick v. State

• Decision Date: 19 February 1896
• Citation: 34 S.W. 274
• Parties: REDDICK v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 274

REDDICK v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1896.

Appeal from district court, Brazos county; W. G. Taliafero, Judge.

Jim Reddick was convicted of rape, and appeals. Reversed.

Ford & Wall, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of rape, and his punishment assessed at death, and he prosecutes this appeal. Upon the trial, over the objection of the appellant, the state was permitted to prove the following facts, by T. C. Nunn, sheriff of Brazos county: That on Monday, after the alleged rape of Fannie Polazo, and after defendant had been arrested for said offense, he placed defendant and eight other negroes in a line in the jail of Brazos county, and then brought Charley Polazo into said jail, and that he identified and pointed out defendant as the man who had committed the rape upon Fannie Polazo. The state was also permitted to prove by Sheriff Nunn that at the same time and place, and under the same circumstances, Fannie Polazo, the prosecutrix, was carried into the jail, and she identified and pointed out the defendant as the man who had raped her and bit her thumb; and that the said Fannie fainted, and would have fallen had she not been caught and held up by others. These facts were introduced in evidence as original testimony. Were they admissible as original testimony? On the next morning after the rape, the prosecutrix related what had occurred to her brother-in-law, Joe Polazo, and his wife. Some of the details were permitted to be proven by Polazo and wife. To this there was no objection. If an objection had been interposed, we might revise the action of the court in permitting the state to introduce as original testimony any of the details attending the rape; the rule being that, as original testimony, the prosecution can prove that the woman charged to have been outraged complained of the outrage. This is admissible, whether res gestæ or not, as a part of the state's case. A very clear statement will be found in Thompson v. State, 38 Ind. 40, which states: "That the prosecution may show by the testimony of the prosecuting witness, or that of other witnesses, that she made complaint of the outrage recently after its commission, and when, where, and to whom it was made. That the prosecution will not be allowed to prove the name of the person charged with the crime, or the particulars as narrated by her, the practice being merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to receive in answer only, simply, yes or no. That such statement is only corroborative of her testimony, and is not evidence of the fact upon which the jury can find the defendant guilty; and, when she is not a witness in the case, it is wholly inadmissible." See Bish. Cr. Proc. § 912; Reg. v. Osborne, Car. & M. 622; Reg. v. Megson, 9 Car. & P. 420; Reg. v. Alexander, 2 Craw. & D. 126; People v. McGee, 1 Denio, 19; Stephen v. State, 11 Ga. 225; Johnson v. State, 17 Ohio, 593; Laughlin v. State, 18 Ohio, 99; Weldon v. State, 32 Ind. 81; Roscoe, Cr. Ev. 24. Mr. Greenleaf says: "Though a prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited on cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination the practice has been merely to ask her whether she made complaint that such an outrage had been perpetrated upon her, and to receive only, simply, yes or no. Indeed, the complaint constitutes no part of the res gestæ. It is only a fact corroborative of the testimony of the complainant. Where she is not a witness in the case, it is wholly inadmissible." See 3 Greenl. Ev. (15th Ed.) § 213. Mr. Taylor, in his work on Evidence, says "that in no case can the particulars of the complaint be disclosed by witnesses for the crown, either as original or confirmatory evidence, but the details of the statement can only be elicited by the prisoner's counsel on cross-examination," — citing Reg. v. Walker, 2 Moody & R. 212; Reg. v. Osborne, Car. & M. 622; Reg. v. Quigley, Ir. Cir. R. 677. Mr. Phillips (volume 1, p. 149, Cow. & H. & E. Notes) says: "In prosecutions for rape or for assault with intent to commit rape, proof of the fact that the prosecutrix made complaint soon after the commission of the alleged crime is admissible, and indeed is generally required; but the particulars of the complaint made cannot be admitted in evidence as to the truth of her statement. The particulars stated, as to the violence used or the person who committed the violence, cannot be received. The evidence should be confined to the bare proof of the fact that the complaint of personal, violence was made, and that an individual was charged, without mentioning his name," — citing Reg. v. Walker, 2 Moody & R. 212; Rex v. Wink, 6 Car. & P. 397; Reg. v. Megson, 9 Car. & P. 420; Reg. v. Osborne, 2 Car. & M. 622; Reg. v. Nicholas, 2 Car. & K. 248. This precise question came up in Pefferling v. State, 40 Tex. 487; and the supreme court of this state reversed the judgment, upon the ground that the brother of the prosecutrix was permitted to swear to a detailed statement made by the prosecutrix (his sister). Judge Moore, speaking for the court, says: "It is, we think, well established by reason, as well as the great weight of authority, that proof of the particulars of the complaint and the detailed statement of the alleged facts and circumstances connected with it, as was permitted in this case in the court below, cannot be admitted as original evidence to prove the truth of the statement testified to by the injured party, or to establish the charge made against the prisoner." What was said by this court in Ruston's Case, 4 Tex. App. 432...