Rosamond v. State, (No. 7251.)

• Decision Date: 31 January 1923
• Docket Number: (No. 7251.)
• Citation: 249 S.W. 468
• Parties: ROSAMOND v. STATE.
• Court: Texas Court of Criminal Appeals

249 S.W. 468

ROSAMOND v. STATE.

(No. 7251.)

Court of Criminal Appeals of Texas.

January 31, 1923.

State's Rehearing Denied March 21, 1923.

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

J. O. Rosamond was convicted of rape, and appeals. Reversed and remanded.

R. M. Lively and Stanford, Sanders & West, all of Canton, for appellant.

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

LATTIMORE, J.

Appellant was convicted in the district court of Van Zandt county of the offense of rape, and his punishment fixed at 25 years in the penitentiary.

The injured female was a girl 14 years old, the niece of appellant. She testified to a complete act of intercourse with her uncle in his house about the date alleged in the indictment, and was then permitted over objection to testify to a number of other acts of intercourse between them at different times and places. The admissibility of this evidence is challenged. We seriously doubt the admissibility of evidence of other acts of intercourse in a case like this as a part of the state's proof in the making out of its case originally. There may be exceptions to this, as in the case which was discussed by us in Rodriguez v. State, 90 Tex. Cr. R. 566, 236 S. W. 726; but in that case evidence of other transactions was held admissible after the defense in various ways had sought to break down the testimony of the prosecuting witness, and because of the fact that the state was able to corroborate the prosecutrix in her testimony regarding an act different from the one immediately charged, by other testimony. We have no difficulty in believing the evidence as to other acts admissible in such case. However, until in some way the testimony of the prosecutrix is attacked, or it is made to appear that evidence of other acts tends to solve a disputed issue, our opinion would be adverse to the admission of such testimony. See Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905; Bradshaw v. State, 82 Tex. Cr. R. 351, 198 S. W. 942. After the prosecutrix had left the witness stand, the state introduced a doctor who testified that he was called upon to examine her some time after this alleged occurrence with a view of ascertaining if she was pregnant. He testified that from his investigation he concluded that the girl had frequently prior thereto had intercourse with men or a man. On cross-examination of the girl the appellant drew from her admissions of intercourse with two small boys some three years prior to the alleged occurrence in this case. Said doctor testified that in his opinion an act of intercourse with each of two boys about 10 or 11 years of age, occurring three years before the alleged act of intercourse with appellant in this case, would not produce the condition which he found to exist in the private parts of the prosecutrix. The evidence of the girl as to other acts of intercourse with appellant recently before the one charged in the indictment herein might thus become material as tending to solve the issue raised by the doctor's testimony as to her condition, and such testimony of other events might then be made admissible.

The state rested its case after introducing the testimony of the little girl, the doctor mentioned, and a sister of the deceased mother of the prosecutrix. The appellant then introduced the testimony of a large number of character witnesses to his good reputation for being a peaceable, law-abiding citizen and a man of honorable conduct. Appellant himself then took the stand and denied in toto any acts of intercourse with prosecutrix or improper conduct with her at any time or place. As rebuttal evidence the state introduced appellant's brother. Two bills of exception reflect objections made by appellant to portions of the testimony of this witness. It appears from all the testimony of said witness in the statement of facts that he was not certain as to anything said between himself and his brother in a conversation which the state sought to elicit. The state wound up its direct examination of this witness by asking him the following question:

"In that conversation between himself and you, in substance, was his conversation to the effect that he had had carnal intercourse with her?"

This was objected to on the ground that it...