Robbins v. State

• Decision Date: 23 November 1904
• Citation: 83 S.W. 690
• Parties: ROBBINS v. STATE.
• Court: Texas Court of Criminal Appeals

83 S.W. 690

ROBBINS v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1904.

Appeal from District Court, Williamson County; V. L. Brooks, Judge.

John Robbins was convicted of rape, and he appeals. Reversed.

J. F. Taulbee, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 15 years; hence this appeal.

Appellant made a motion for continuance on account of the absence of John Hamilton. The diligence used was the issuance of a subpœna a day or two after the indictment was found, and placing the same in the hands of the sheriff, which was returned unserved. It is alleged in the application that John Hamilton was a resident of Williamson county, but was temporarily absent, and his present whereabouts was unknown to appellant, though diligent inquiry had been made to ascertain same. This we believe was sufficient diligence. It is alleged that appellant expected to prove by him that he had heard the prosecutrix on divers occasions, since her brother was sent away from the home of appellant, state that she (prosecutrix) would get even with defendant for sending her brother away, if she had to swear defendant into the penitentiary or break his neck. Was this testimony material? We believe, under the peculiar circumstances of this case, it was. The state's case mainly rested on the testimony of the prosecuting witness, Lorinda Chamblee, and her animus or motive became material in the case. Appellant proved the same fact by other witnesses; but this testimony related to other occasions, and was not in effect cumulative. But, even if it was, this being the first application for continuance, it would make no difference. Appellant was entitled to the evidence of this witness.

In the motion for new trial appellant complains of the action of the court in instructing the jury with reference to proof of other extraneous crimes, and for the purpose they could be used by the jury. The charge is substantially as follows: "Certain testimony has been admitted before you tending to show that defendant has been charged with and convicted of other crimes than the one for which he is on trial. You may consider this testimony on the issue of the credibility of the defendant as a witness, and for no other purpose." The objection urged is that there was evidence before the jury that appellant had been charged with another offense, to wit, theft of cotton, for which he was not convicted, the prosecution having been dismissed, and that this evidence ought to have been properly limited, as was other testimony of this character. We think this contention is correct, especially when we view the action of the jury in regard to this theft of cotton transaction.

The motion for new trial complains of the misconduct of the jury hearing other testimony regarding this transaction. The affidavits of some of the jurors show that the matter was mentioned in the jury room before the jury returned their verdict. One of the jurors stated to other jurors in the jury room that since this matter came up he remembered it, and that defendant was caught up with in the theft of the cotton by the owner of the cotton putting scraps of marked paper in the cotton, and when the cotton was carried to the gin the scraps of paper were found in it and the cotton thus identified. This character of testimony delivered in the jury room appears to us to intensify the court's error in not limiting the effect of the cotton transaction, and of itself shows misconduct of the jury in the jury room in relation to this cotton transaction; being other facts in connection therewith which tended to show that, although the case had been dismissed, appellant was guilty of that offense.

The action of the court with reference to the family Bible was not, under the circumstances, reversible error. A Bible was admitted to show the record of the age of the prosecutrix, Lorinda Chamblee. This Bible was not sufficiently identified as the family Bible of the parents of the prosecutrix, and was therefore inadmissible, and the court properly excluded it, besides instructing the jury not to regard it, though introduced in evidence. Besides, no issue was made by defendant as to the age of the prosecutrix; other testimony of the state showing that she was under 15 years of age not being controverted.

A number of bills of exception were reserved to the argument of the district attorney before the jury. Appellant's third bill of exceptions was corrected by the judge, and we copy from the judge's explanation as follows: "The district attorney said: The defendant's wife, in contradiction of the prosecuting witness, says that the girl said, when defendant was arrested, that `John didn't do anything to me; somebody has put job up on him.' Who will defendant say put a job up on defendant in this case? Surely not the little 13 year old girl who is the injured party? Who, then? I realize that there are many cases where that may be true. Such was said to be true of the Jay Owens case, where it was charged that Jay Owens' wife, a woman of mature years, conspired with her daughter and taught her the story. Such was said to be true of the Draper case, from Round Rock, where a man traveling with a young girl from California to Texas was charged with assault upon the girl, and it was in that case charged that older and wiser heads than the prosecutrix in that case taught the little girl her story."

Appellant's bills Nos. 4 and 6 are along the same line. It appears to have been a matter of controversy between the state and defendant as to how the offense became known. Appellant's counsel, in his cross-examination of the prosecutrix, showed that she had not told any one about the transaction for which appellant was being tried prior to his arrest. The district attorney in his argument, according to appellant's bill, treated this matter as follows: "`Gentlemen, I will show you why we did not show you who caused the arrest of the defendant. The Court of Criminal Appeals has recently held that, in a trial of a case of this kind, the state must confine itself to the one act alleged in the indictment. I say that the Court of Appeals is wrong, but they say it is the law, and I must be governed by what they say.' Here the district attorney turned to counsel for defendant, and dramatically exclaimed: `Your objection to my criticism of the Court of Appeals may be well taken, but I will say that formerly, by a long line of decisions reaching back to the beginning of the history of Texas, that court had held that the state could prove more than one act, but now they confine the state to the one act.' Suppose that this defendant was seen by John Hamilton, or the constable, John Sudduth, at nighttime, coming from the brush with this little girl, with her little drawers in his hand. Suppose that the whole neighborhood was talking about his conduct toward her for more than a year. Suppose that this had been going on for a long time; suppose that this defendant had commenced to gratify his brutal and beastly passion with this little girl long before he could possibly penetrate her sexual organ. How could I have shown this, when the Court of Appeals limits me to proving one transaction? Suppose he practiced upon her tender person the detestable and damnable crime against nature. How could I have shown it?" The court explains this bill by stating: "Mr. Nunn, counsel for defendant had stated to the jury in argument that he could and would show that the prosecutrix had lied in reference to a material matter, in this: that she had stated that she had never told any one about what defendant had done to her until after he was arrested, and that as far as she knew no one but her and the defendant up to that time knew about it; that the jury knew that the defendant had not told it, or the district attorney would have proved a confession, and that there was no other way for it to get out, and, therefore, the girl must have told it, and therefore had lied in this particular; and he challenged the district attorney to explain how the state had obtained its information as to the commission of the crime, and what that information was. The district attorney in his closing argument repeated the above language, and said: `In answer to said challenge, I will illustrate to you some of the ways in which the state may have obtained its information. I am not permitted to tell you that it was obtained in a given way, and you are not...