Reed v. State

• Decision Date: 16 February 1916
• Docket Number: (No. 3938.)
• Citation: 183 S.W. 1168
• Parties: REED v. STATE.
• Court: Texas Court of Criminal Appeals

183 S.W. 1168

REED v. STATE.

(No. 3938.)

Court of Criminal Appeals of Texas.

February 16, 1916.

Rehearing Denied March 15, 1916.

Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

Pleas Reed was convicted of perjury, and he appeals. Affirmed.

J. M. Wagstaff and S. P. Hardwicke, both of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at two years' confinement in the state penitentiary.

This is the second appeal in this case, the opinion on the former appeal being reported in 174 S. W. 1065. As the facts are so fully stated in that case, and in the companion cases of Cutbirth v. State, 174 S. W. 1066, and Cox v. State, 174 S. W. 1067, we do not deem it necessary to state them again.

Appellant again moved to quash the indictment. A copy of the indictment is set forth in the Cox Case, supra, and on the former appeal we held the indictment valid in all three cases, and we do not deem it necessary to again discuss that feature of the case. Anderson v. State, 56 Tex. Cr. R. 361, 120 S. W. 462; Jernigan v. State, 43 Tex. Cr. R. 114, 63 S. W. 560; Washington v. State, 22 Tex. App. 27, 3 S. W. 228; Chavarria v. State, 63 S. W. 313; Yardley v. State, 55 Tex. Cr. R. 487, 117 S. W. 146.

When the case was called for trial, appellant moved to continue the case on account of the absence of two witnesses, Ed Carter and Mrs. Ruth Alred. As to the witness Carter, the record discloses he was a fugitive from justice, and, of course, there was no error in overruling the motion as to him. Godwin v. State, 44 Tex. Cr. R. 600, 73 S. W. 804; Anderson v. State, 53 Tex. Cr. R. 344, 110 S. W. 54; Deckard v. State, 58 Tex. Cr. R. 34, 124 S. W. 673; Harris v. State, 8 Tex. App. 90; Vann v. State, 48 Tex. Cr. R. 11, 85 S. W. 1064. In addition, the witness Carter had testified on the former trial of this case, and appellant was permitted to introduce his testimony given at that trial on this trial. As to the witness Mrs. Alred, it may be said that the diligence is sufficient, and it appears that she was expecting to be shortly confined. So the sole question is: Was the testimony of such a material nature as the court should have granted the continuance? In the motion it is stated that the witness would testify that she was at a party at the house of Emmett Taylor, and "game of good night" was played at said party; that the prosecuting witness, Miss Simpson, and Ernest Cox were partners while playing the game, and that Miss Simpson conducted herself in a lewd and lascivious manner; that Cox embraced her, and she lovingly laid her head on Cox's shoulder. Miss Simpson denied any such conduct, and denied that Cox was her partner in the game. So the testimony would be admissible to impeach Miss Simpson. Again, it was an issue in the case as to whether Miss Simpson was a virtuous and chaste female, and the testimony would be admissible as original testimony on that issue, as well as for impeaching purposes. Appellant contends that this was his first application for a continuance, but the court in approving the bill states it was the second application, and the court gives this as the ground for overruling the application when first presented. Appellant accepts the bill with this qualification, and he cannot be heard to dispute that fact. Again when the matter was presented to the court again in the application for a new trial, the court calls attention to the fact that the defendant's witnesses Emmett Taylor and Eugene Gist place Mrs. Alred in such position that she could not have seen Ernest Cox and Miss Simpson while playing the game of good night. Mr. Gist says he was the partner of Mrs. Alred while playing that game, and he testifies to no such facts as it is alleged Mrs. Alred would testify to. The appellant's witness Emmett Taylor testified on the trial:

"In going around the house that night, Ernest Cox and Miss Minnie Simpson were the last couple to come around. When they came around the house, I was squatting down at the west end of the house at the end of the kitchen. I saw Ernest Cox and Miss Minnie Simpson come around the house. They were talking. I did not hear what they said. Mr. Ernest Cox had his arm around Miss Minnie Simpson, and she was leaning her head against his shoulder, and they were walking very slow."

He testifies he was the only person in position to see them, but that he afterwards told Mrs. Alred what he saw. It is thus seen that the testimony adduced by defendant on the trial shows that if Mrs. Alred was present she would not testify as contended, but her information as to the conduct of Miss Simpson on that occasion was received from Emmett Taylor, and the record discloses that Emmett Taylor was present and testified at the instance of appellant, and as stated in Branch's Crim. Law, § 253, in passing on supposed error in refusing continuance, the court will look to evidence adduced on the trial. Willison v. State, 7 Tex. App. 400; Clampitt v. State, 9 Tex. App. 31; Dowdy v. State, 9 Tex. App. 292; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175. And where it appears from the evidence on the trial that the absent witness could not have known anything about the facts which it is alleged that she would testify to, it was held that the application was properly overruled. Lindsey v. State, 35 Tex. Cr. R. 164, 32 S. W. 768; Boyd v. State, 50 Tex. Cr. R. 139, 94 S. W. 1053; Wigfall v. State, 57 Tex. Cr. R. 639, 124 S. W. 649. Appellant's witnesses Eugene Gist, who was Mrs. Alred's partner in the game of good night, and Emmett Taylor, place Mrs. Alred in such position that she could not have seen what took place while Ernest Cox and Miss Simpson were playing this game, if they in fact were partners on that occasion. And, according to the court's qualification, this was a second application for a continuance, and if Mrs. Alred would testify as alleged, such testimony would be but cumulative of the testimony of Emmett Taylor, and it has always been the rule in this court that a second application for a continuance will not be granted to secure testimony that is merely cumulative of testimony adduced on the trial. Harvey v. State, 35 Tex. Cr. R. 559, 34 S. W. 623; Shackelford v. State, 53 S. W. 884; Grimsinger v. State, 44 Tex. Cr. R. 1, 69 S. W. 583; Dobbs v. State, 54 Tex. Cr. R. 583, 113 S. W. 921; Bearden v. State, 47 Tex. Cr. R. 276, 83 S. W. 808.

It appears on the trial of this case that one Henry Ethridge was prosecuted for slander, in that he had said of and concerning Miss Simpson that "she was nothing but a damned whore." On that trial appellant testified as a witness, and testified he himself had had carnal knowledge of Miss Simpson. On that statement this prosecution is based. Dr. Alexander and three other physicians testify to having made an examination of Miss Simpson, and from that examination they testify that Miss Simpson had never had carnal intercourse with any man. Appellant objected to this testimony, claiming that it was but the opinion of the witnesses. The witnesses testify fully as to the examination, the condition they found her private parts, and gave the facts as to why they say she was a virgin. Such testimony is not an opinion but a statement of a fact they know to be true from their medical knowledge. Appellant says that, if the testimony was admissible, then the court ought to have instructed the jury as requested by him:

"You are instructed that the corroboration required by law requires the proof of facts, and the mere opinion of medical experts alone is not such corroboration in law as will authorize you to find the testimony of Miss Simpson sufficiently corroborated."

Article 806 of the Code of Criminal Procedure 1911, provides that in trials for perjury no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant's statement.

Appellant had testified, on the trial of Henry Ethridge for slandering Miss Simpson, that he (appellant) "had had carnal intercourse with the said Minnie Simpson at a bridge west of Potosi." Miss Simpson testified on this trial that that statement was not true. That is one witness as to the falsity of the statement. Now, is she strongly corroborated? Four doctors testify to examining her, and they and each of them swear positively that Miss Simpson had never had intercourse with any man. If that is not strong corroboration of her testimony, we do not understand how her testimony could be...