Rhea v. State

• Decision Date: 14 November 1923
• Docket Number: (No. 7519.)
• Citation: 255 S.W. 757
• Parties: RHEA v. STATE.
• Court: Texas Court of Criminal Appeals

Page 757

255 S.W. 757

RHEA v. STATE.

(No. 7519.)

Court of Criminal Appeals of Texas.

November 14, 1923.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

A. D. Rhea was convicted of seduction, and he appeals. Reversed and remanded.

Cooley & Crisp and Ross Huffmaster, all of Kaufman, for appellant.

H. R. Young, Co. Atty., and Wynne & Wynne, all of Kaufman, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

From a conviction for seduction in the district court of Kaufman county with a penalty of five years, appellant appeals.

Appellant was a barber living in the town of Kaufman. Prosecutrix was at work in a telephone office in said town, and the two met and began to keep company. Without going into details, prosecutrix testified that after going with appellant some time he proposed marriage to her, and they became engaged in January, 1921, the wedding to take place in April, and that on the 20th of March, relying upon appellant's promise to marry her, and his insistence upon his intention so to do, and her affection for him, she yielded her person to him. She also testified to subsequent acts from one of which she became pregnant, and was delivered of a child. A sister and brother of prosecutrix testified for the state to conversations had with appellant which, if true, sufficiently corroborated her in her claim that there was an engagement to marry. Appellant denied any promise to marry, but admitted his intercourse with prosecutrix upon a number of occasions. He also sought to show by witnesses acts of intercourse with other parties prior to the time of the act relied upon by the state.

There are a number of bills of exception in the record which are not brought forward or discussed in the able brief filed by appellant's counsel. We have carefully examined each of those not so discussed, and find nothing in them calling for a reversal, and our discussion here will be of those points presented in the brief. Appellant's first complaint is of the fact that, when the state introduced prosecutrix as a witness, she was permitted to take the stand, and while giving her testimony to hold in her arms a baby which she said was her and appellant's. There is a bill also complaining of the fact that the child fretted, and that one of the prosecuting attorneys took it in his arms and carried it in the presence of the jury to another person in the courtroom. This court field in Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477, and in Whitehead v. State, 61 Tex. Cr. R. 558, 137 S. W. 356, that the state might prove by prosecutrix that the accused was the father of the child which she had in her arms in the presence of the jury. We are cited to no authority holding to the contrary. We have examined the cases of Stracner v. State, 86 Tex. Cr. R. 89, 215 S. W. 305; Gleason v. State, 77 Tex. Cr. R. 300, 178 S. W. 506; Gray v. State, 43 Tex. Cr. R. 300, 65 S. W. 375, and Adams v. State, 87 Tex. Cr. R. 67, 219 S. W. 460, cited by appellant in support of his contention. In the opinion in the Stracner Case, supra, Judge Davidson distinctly says that facts corresponding to those in the instant case do not constitute ground for reversal. In the Gleason Case, supra, the child was introduced in evidence, and this was held reversible error. Gray v. State, supra, was a rape case, and has no pertinence so far as we can see. In Adams v. State, supra, the opinion of the court reversed the case upon various points, one of which was because of argument of the state's attorney upon the resemblance of the child, which was held in the lap of prosecutrix, and the appellant. We do not think it authority for the contention here made by appellant. In the instant case it is made to appear that the young woman brought her baby into the courtroom when the witnesses were called to be sworn, and that she carried it into the witness chair with her, where it remained quiet for a while, and then began to fret, and that one of state's counsel removed it, and carried it to some other person. There was no profert of the baby in evidence, no comment upon its appearance, and as far as the record reveals no effort made to institute any comparison between it and appellant in any way.

Appellant asked a special charge, in substance, that the jury should not consider a statement claimed by the state to have been made by him to the sister and brother of prosecutrix to the effect that he would come out and marry her, if they believed that said statement was induced by reason of threats made by said parties to him; and further that, if they believed appellant went away from the city of Kaufman for about three weeks, and that his absence also was brought about by reason of threats, the jury should not consider any of said evidence against him. If the evidence supported the proposition that any threats were made against appellant by the relatives of the prosecutrix, and that he acted in a given manner because of such threats, we would still think it improper for the court to instruct the jury not to regard his actions as evidence against him in such case. It might become a question for the jury to decide the extent to which the actions referred to were criminating in their character, and the weight to be attached to such actions if brought about by threats, but we know of no rule requiring the jury to be told that such evidence could not be considered at all. However, neither the brother of prosecutrix when testifying for the state, nor the appellant when testifying for himself, attributed any threats to said brother. The sister of prosecutrix testified that when she learned of her sister's condition she went to Kaufman, and had a talk with appellant. According to her testimony she said to him: "You were engaged to my sister before you ever touched her," and he replied, "Yes," and that he was going out the next day to marry her, and would be there in the evening. Witness said she then told him he had better come there before evening, and that he replied he would come the next morning and go to Dallas and marry her. On cross-examination witness said that after appellant had promised to come out and marry her sister that she then said to him: "If you dont come, papa will be up her on to you, my papa will kill you." She was very positive that no threat was made before he made the admission that he was engaged to marry her sister and until after he had promised to come out and marry her. Referring to this occasion appellant when on the witness stand said they wanted him to marry prosecutrix that evening; that he did not tell her sister that he had promised to marry prosecutrix; that he did not tell said sister that he would be out there and get prosecutrix and take her to Dallas and marry her. Appellant said that he did not go out there the next day, but that he left Kaufman that evening and went to Fort Worth, and stayed over there two or three weeks, and that the reason he left town was because he did not want any trouble with the father of prosecutrix; that he thought it would give him a few days to get over his mad spell and study it over. In view of this testimony we do not think any error was committed in the refusal of the special charge. The principle of law applicable to a state of facts referred to in the charge has no application to the actual facts in testimony from the witnesses herein.

There is complaint in two bills of exception of the action of private prosecuting counsel in argument in referring to appellant as a "slick town boy." The authorities cited, to wit, Cannon v. State, 84 Tex. Cr. R. 479, 208 S. W. 660, and Jupe v. State, 86 Tex. Cr. R. 573, 217 S. W. 1041, seem to us to have no bearing. In the Cannon Case no complaint was made of any particular reference to the appellant, but inflammatory appeals were indulged. In Jupe's Case, supra, the state's attorney called the appellant a cowardly cur, and the use of such language was condemned. There is no question but that appellant was a town boy, and the fact that in the opinion of the attorney he was a "slick town boy" might be argued as supported by facts. The language used has no particular meaning, and we would not deem it reversible error. We find no bill of exceptions in the record complaining of the refusal to give a charge to the jury not to consider the argument with reference to the future of the baby of the prosecutrix.

It is made to appear that two witnesses for appellant were cross-examined by the state, and asked with reference to their knowledge of the general reputation for truth and veracity of another of appellant's witnesses, Arthur Alexander, and that they said they knew same, and that his reputation for truth and veracity was bad. As one of the grounds of his motion for new trial appellant sets up the fact that the testimony of said witnesses on that point was untrue, and was given under a mistake of fact, and the affidavits of the two witnesses in question are appended to the motion for new trial.

An examination of the...