Rodriguez v. State

• Decision Date: 18 January 1922
• Docket Number: (No. 6595.)
• Citation: 236 S.W. 726
• Parties: RODRIGUEZ v. STATE.
• Court: Texas Court of Criminal Appeals

236 S.W. 726

RODRIGUEZ v. STATE.

(No. 6595.)

Court of Criminal Appeals of Texas.

January 18, 1922.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Rudolfo Rodriguez was convicted of incest, and appeals. Affirmed.

C. A. Davies, R. L. Neal, and Clifford H. Davies, all of San Antonio, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bexar county of incest, and his punishment fixed at five years in the penitentiary. The parties involved were Mexicans. The prosecutrix was the daughter of appellant.

Appellant's motion to quash the indictment was correctly overruled. Said indictment was in approved form, and charged that appellant on a certain date, in Bexar county, carnally knew Natalia Rodriguez, she being then and there his daughter.

The date of the offense charged was November 4, 1918, and that an act of intercourse took place on such date was testified to by prosecutrix in her evidence in chief. On said examination no mention was made by her of any other occurrence between herself and her father. She was subjected to a grueling cross-examination in an apparent effort to show by her admissions and surrounding facts, that her testimony was both untrue and unreasonable. She was also cross-examined vigorously upon matters tending to show that she had had intercourse with another than appellant, and that such other person was the father of the child of prosecutrix. After a redirect examination by the state prosecutrix was again subjected to a long cross-examination of the same character as mentioned. On another redirect examination she was asked relative to another act of intercourse with appellant, and then testified that in January, 1919, her father again had intercourse with her, and that a boy named Lopez caught them in said act. Thereafter Lopez, testifying for the state, gave evidence that in January, 1919, he caught appellant and his said daughter in an act of intercourse. The state elected to rely for conviction upon the act of November 4th, and the trial court told the jury in the charge that they could not consider evidence of any other act of intercourse between appellant and his said daughter than the one of November 4th for any purpose except in so far as same showed appellant's guilt of said act of November 4th. There was no exception taken by appellant to this charge, but complaint is here made because of the refusal of appellant's special charges Nos. 2 and 3 which sought to have the jury instructed not to consider for any purpose evidence of any act of intercourse save that of November 4th. We think such charges correctly refused, and that the evidence of the act of January, 1919, was properly admitted. Bradshaw v. State, 82 Tex. Cr. R. 351, 198 S. W. 942; Alexander v. State, 82 Tex. Cr. R. 431, 199 S. W. 292. In the Bradshaw Case we held evidence of other acts than the one directly charged was admissible as tending to solve the contested issue as to whether the accused had had intercourse with his daughter on the occasion alleged in the indictment; that fact being sharply controverted by the cross-examination of the prosecutrix and by the evidence introduced for the appellant.

It is to be regretted that our decisions are not in entire accord on this question. The authorities on both sides are referred to in the Alexander Case, supra, but are not discussed at length. In Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47, this court stated in the opinion that the sole question raised in the case was whether the state could prove the crime of incest by evidence of more than one act, and further stated that this was not an open question, and the introduction of other acts was upheld, and the case affirmed without statement of the facts, so that we might decide independently whether we thought such evidence admissible or not. In Clifton v. State, 46 Tex. Cr. R. 18, 79 S. W. 824, 108 Am. St. Rep. 983, on authority of Ball v. State, 44 Tex. Cr. R. 489, 72 S. W. 384; Smith v. State, 73 S. W. 401, and Barnett v. State, 447 Tex. Cr. R. 592, 73 S. W. 399, 100 Am. St. Rep. 873, the Burnett Case was overruled, and a contrary doctrine announced. We doubt the similarity of principle in the three cases cited as authority in the Clifton Case. In the Barnett Case referred to, not only did the prosecutrix, who was a girl under the age of consent, the case being one of rape, testify positively to the alleged act, but the accused was shown to have confessed, and manifestly evidence of other acts than the one charged could tend to solve no disputed issue arising on such facts, and could only serve the purpose of enhancing the penalty. The Smith Case, also referred to as authority, states no facts from which we may know if evidence of other acts would therein tend to solve any controverted issue. The objection of appellant stated in the opinion in said case was that the evidence of such other acts did not tend to shed light on any controverted issue, and the ground for holding evidence of such other acts inadmissible, as stated in said opinion, was simply that it formed no part of the res gestæ, and did not identify the accused. Clearly this was too restricted a statement of the purpose for which evidence of other acts might be used. The Ball Case, also referred to, is confusing. It is stated in the opinion therein that no objection was made to proof of similar acts of intercourse prior to the one charged, the case being one of statutory rape, and that the subsequent acts objected to were not acts of carnal intercourse, but of cruel conduct on the part of the accused towards the prosecutrix, and were offered to show that he was domineering, coercive, and capable of controlling her will. After indulging in some obiter discussion, said opinion concludes by saying: "It was accordingly error to admit such subsequent acts." In the Clifton Case, supra, the accused was under a number of indictments for the different acts of intercourse with prosecutrix, which fact was shown on the trial, as was also the further fact of assaults of other character by the accused on the prosecutrix, which evidence of conduct other than amounting to intercourse was said by this court in the opinion to be in no way connected with acts of intercourse.

Upon the authority of the cases just discussed, and practically without further reasoning, it was held in the Clifton Case that all of this testimony should have been excluded. In Wiggins v. State, 47 Tex. Cr. R. 538, 84 S. W. 821, also a statutory rape case, upon the authority of the Smith and Barnett Cases, supra, evidence of other acts than the one charged was held inadmissible. So, by the same judge rendering the Wiggins' opinion, in French v. State, 47 Tex. Cr. R. 571, 85 S. W. 4, an adultery case, other acts were held inadmissible; also in the Gillespie Case, 49 Tex. Cr. R. 530, 93 S. W. 556, in an opinion by the same learned judge, wherein the other act of intercourse in testimony was ten years removed from the one charged. In the Skidmore Case, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 466, this court seemed to hold contrary to the opinion in the French Case, supra, but reviews and reaffirms the holding in the Clifton Case, supra. The entire discussion in the Skidmore Case appears to be pitched on the proposition that each act of intercourse is a separate offense, and to allow proof of separate acts would place upon the accused the burden of defending against a number of disconnected offenses. In our opinion, the vital point upon which is rested a decision of the question of whether other acts of intercourse should be admitted or not was not discussed in the Skidmore Case. If evidence of other acts fairly tends to shed light on any controverted issue in the case on trial, it is not a valid objection thereto that it tends to show the accused guilty of another offense than the one on trial. Wright v. State, 56 Tex. Cr. R. 357, 120 S. W. 458; Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; Williams v. State, 24 Tex. App. 412, 6 S. W. 318; Golden v. State, 22 Tex. App. 1, 2 S. W. 531; Roman v. State, 64 Tex. Cr....