Rogers v. State

• Decision Date: 31 January 1912
• Parties: ROGERS v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 631

ROGERS v. STATE.

Court of Criminal Appeals of Texas.

January 31, 1912.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Dave Rogers was convicted of crime, and he appeals. Affirmed.

Crawford, Walker & Williams, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On July 2, 1910, appellant was indicted for an assault with intent to commit rape upon Florence Chick, a woman, on June 19, 1910, by force, threats, and fraud. He was tried on October 14, 1910, convicted, and his penalty assessed at five years in the penitentiary.

It is unnecessary to give any extended statement of the testimony. On Sunday evening June 19, 1910, the assaulted party, a young girl just then past 14 years of age, who lived a few blocks from the Fair Grounds in the city of Dallas, went from her home to the Fair Grounds with her little sister and brother, both younger than she, and with another young girl about her own age and two other younger girls. They went into the Fair Grounds about the middle of the evening, to hear the music and for other purposes connected with the grounds. After being in the grounds some time, the appellant came to where she was and asked her where her father and mother and oldest brother were. She told him they were all at home. He then left her, stating he would be back later. Later he did come back with a companion, Jack Hill, to where she and the other children were. It was then late in the evening, not long before night, or perhaps nearing night. The testimony then tends to show that the appellant took hold of her and Jack Hill took or went with the other girl about her age all together some distance across the Fair Grounds; that the appellant, when the other children attempted to follow them and did follow them for some distance, ordered them to stop and go back. They first declined and still followed. After going some distance further, the appellant gave one of the children 25 cents, and in this way and by threats against them induced them to cease following and return whence they came. The appellant with the prosecuting witness, and Hill with the other girl, then proceeded to a portion of the Fair Grounds to the bear cage. After staying there some time, the prosecuting witness claiming that she was kept there by appellant by force, and, notwithstanding her crying and attempt to leave, by force he prevented her. Then about or after dark, he, by force, took her between two of the large horse stables. She testified that he then threw her down and pulled her panties off of her, then put his knee across her chest, unbuttoned his top pants, and started to undoing his under pants, when he told her to stand up, and she thereupon ran from and escaped him; that he ran after her then clear across the Fair Grounds to another portion thereof, where she met a policeman named Meeks, and later or about the same time another police officer named Stacy and some others apparently some of her girl companions.

The appellant did not testify. There was more or less testimony introduced tending to support the complaining witness in her testimony. There was some other testimony introduced by the appellant disputing various circumstances of her testimony, and he also introduced statements contradicting, or tending to contradict, her in various parts of her testimony. However, no testimony except her own was introduced as to the immediate assault upon her when she claimed the appellant took off her panties and unbuttoned his clothes. As soon as she reached the policeman, she made statements to him of what had occurred. She was then crying, very much excited, and her clothes more or less torn and soiled. She was then at once taken home by one of the policemen, made statements to him as he was taking her home, and as soon as she reached home she told her parents what had occurred. There are a great deal of the details of her testimony and of corroborating circumstances and statements by others and of contradictions of her unnecessary to give. No complaint whatever in any way is made as to the charge of the court. There are many exceptions to the introduction, and some to the exclusion, of testimony. We will take up, discuss, and decide the questions as they are presented in the brief of the appellant's attorneys.

The first complaint is as to the admission of the testimony of the policeman Meeks; the mother of the prosecutrix; Stacy, a police officer; Trevathan; Annie Belle Kelley; and Goldy Chitwood—as to giving the details of the assault upon her as related by her to them as soon as she saw them after the claimed assault. We will give bill No. 8 as a sample of each of the others. After the proper heading, the bill is: "Be it remembered that upon the trial of the above-entitled and numbered cause, and while the state's witness Policeman Meeks was upon the witness stand, and while he was testifying for the state when the state was introducing its evidence in chief, the said witness Policeman Meeks was permitted, over the objection of the defendant, to testify to the following facts, to wit: `It was about 7 o'clock when I saw Miss Chick, at the merry-go-round or hobby horse. She seemed to be excited in some way when I saw her—worried about something. She was crying, and her eyes were red; her breathing very short. She sobbed awhile, and then says: `Dave Rogers had me down here by the barns,' and I ask her then what was the trouble, if she was hurt in any way, and she said she was, and I asked her what tore her dress, and I don't know what she said, as I could not talk to her only at times. There was a crowd around there, and I could not ask questions like I would have liked to ask. She said that defendant had taken some of her underwear off of her (her panties), and I ask her if there was anything else, if she was hurt, and she said there was, and about that time (if I am allowed to state it) I wanted to get her away from the crowd and talk to her more secret, and I took her away to one side.'" The appellant objected to said testimony for these reasons: (a) Because it was purely and exclusively the opinion and conclusion of the witness; (b) it was purely hearsay; (c) it was not res gestæ; (d) the statements made by the prosecutrix to the witness were too remote from the time and place of the alleged assault, as testified to by prosecutrix, and as shown by the testimony in the record, to be of any probative value; (e) appellant was not present and could in no way be bound by her statements; (f) it was an attempt by the state to bolster up her evidence by the witness Meeks' testimony; (g) by it the state placed before the jury all the details and minute circumstances, even connecting defendant by name with the offense charged; (h) said officer, Meeks, drew said statements from prosecutrix by questions to her and by insisting that she tell him everything about the transaction and persuading her to talk to him about the details and minute circumstances of the offense charged.

Bill No. 5, after making the same kind of preliminary statement as in the bill above copied, shows ...