Salazar v. State
| Decision Date | 17 February 1909 |
| Parties | SALAZAR v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Goliad County; James C. Wilson, Judge.
Elexandro Salazar was convicted of rape, and he appeals. Affirmed.
Patton & Patton and Fowler & Fowler, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
Appellant's conviction was for rape, resulting in his punishment being assessed at 10 years' confinement in the penitentiary.
Bill of exceptions No. 1, reserved to the action of the court refusing to continue the case, will not be revised, for the reason that the absent witnesses came into court and were tendered appellant during the trial. He refused or failed to place them on the witness stand.
Bill No. 2 recites that the district attorney was permitted to ask the witness Juaneta de Duque what was the appearance of the prosecutrix when witness saw her in the afternoon about 5 o'clock—whether she looked happy or sad; the said offense being alleged and the prosecutrix testifying same occurred about 10 o'clock in the morning of that day. Appellant objected, because the testimony was irrelevant, immaterial, incompetent, and highly prejudicial to the rights of defendant, and was not part of the res gestæ, was a conclusion of the witness, entirely too remote, in that too long a time had elapsed from the time of the alleged assault until prosecutrix was seen by witness, and that prosecutrix had ample time to assume any condition or appearance desired; she being a mature married woman 18 or 19 years of age. The court overruled these objections and permitted the witness to state that the prosecutrix, Guadalupe de Duque, was not crying at that time, but she looked as if she had been crying and appeared to be sad. We are of opinion, conceding the testimony was remote, and if erroneously admitted, that under the circumstances of this case it was not of sufficient importance to require a reversal of the judgment. The prosecutrix was subjected to a very rigid cross-examination, and many questions were asked in regard to her conduct during the day after the alleged rape and prior to the hour of the day inquired about through the witness Juaneta. The bill is so meager, as presented, as not to show the real facts in this connection in which this question was permitted to go to the jury. Appellant was asked many questions in regard to her conduct, etc., during the hours of the day intervening between the time of the alleged rape and the time spoken of by the witness. The bill, as presented, does not show sufficient reason, even if the question was not proper, why the judgment for this reason alone should be reversed.
The next bill of exceptions recites that, while the prosecutrix was on the stand as a witness for the state, she was asked why it was she did not go out in the field and inform her husband of the fact that she had been assaulted; she having previously testified that she had been assaulted about 10 o'clock in the morning, and that she had not informed her husband of the fact that she had been assaulted until about dark of the same day, and after his return home from the field, and that she did not go out in the field to so inform her husband, her husband being at work in the field about three-quarters of a mile from the scene of the alleged assault. Appellant urged many objections to this testimony, which were overruled by the court, with the following qualification and statement: "That this testimony was permitted in explanation why she had not gone to her husband in the field, in answer to examination by defendant's counsel to the effect that she had not given the alarm or informed her husband sooner"—her answer to the question to which exception was reserved being that her husband told her not to come out in the field by herself. This evidence was clearly admissible in the condition in which the bill of exceptions presents the matter.
Another bill of exceptions is reserved to the action of the court permitting introducing in evidence a sacque worn by the prosecuting witness at the time of the alleged rape. There is testimony of several witnesses tracing and identifying the sacque as that worn by prosecutrix. She stated in her direct examination that the sacque was torn in her struggle resisting appellant's attack. The sacque was introduced for the purpose of corroborating her statement as to the struggle. We are of opinion that this testimony was admissible. Whenever the condition or appearance of clothing worn by the party assaulted becomes material to illustrate any fact in the case, it is proper to introduce such clothing before the jury.
The court gave the general definition of rape, as follows: "Rape is the carnal knowledge of a woman without her consent, obtained by force, threats, or fraud." Exception is reserved to this definition given by the court; but, when the law was applied directly to the case, the court limited the jury, in their consideration of rape, to force alone. It was unnecessary for the court to have given the general definition, or even stating it further than evidenced by the facts. We have frequently suggested that only those portions of the definition of an offense should be contained in a charge which apply directly to the issue on trial. Yet in this case, when the court applied the law to the facts, he limited their consideration to a rape by force. We are not aware of any case where this court has reversed a judgment under these circumstances, nor do we think it is of sufficient importance here to require a reversal.
The court gave the following charge: It is urged that this charge is on the weight of the evidence, and singles out certain facts and calls the jury's attention to them specially, to the detriment of appellant before the jury. We do not concur in this view. The court assumed no fact, nor directed the jury to any particular fact, but instructed them that they could take into consideration all the facts, the manner and condition of the prosecutrix at the time of and just after said carnal knowledge, if any, and all the other facts and circumstances in evidence. We are of opinion that this is not a charge on the weight of the evidence.
Appellant in several special instructions requested the court to charge the jury in regard to the facts and circumstances attending the assault, directing their attention specially to these facts, specifying them in the charge. For instance, in special charge No. 2, he requested the court to instruct the jury that if they should believe that the prosecutrix saw and talked to her husband for a half hour or more, at the house of the mother-in-law of said prosecutrix, in the afternoon of the day the offense is alleged to have been committed, and then went with her husband from said house to the home of...
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McDougal v. State
...relating to a reference by the state's attorney to the former conviction, the court held there was no such reference; Salazar's Case, 55 Tex. Cr. R. 313, 116 S. W. 819, where there was no discussion of the former conviction, but a bare mention of it only; Coffman's Case, 73 Tex. Cr. R. 309,......
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Witty v. State
...Cas. 357; Arnwine v. State, 54 Tex. Cr. R. 213, 114 S. W. 796; Morrison v. State, 39 Tex. Cr. R. 523, 47 S. W. 369; Salazar v. State, 55 Tex. Cr. R. 313, 116 S. W. 819; Coffman v. State, 165 S. W. The judgment is affirmed. On Motion for Rehearing. The only question necessary to discuss on r......
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Coffman v. State
...and rendered a certain verdict against defendant would not ordinarily cause a reversal." See, also, Salazar v. State, 55 Tex. Cr. R. 313, 116 S. W. 819. Appellant complains, that the court erred in refusing his motion for new trial because the jury discussed and considered the fact that the......
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McDougal v. State
...standpoint, to single out as an additional subject of charge the evidence of the character of deceased. We refer to Salazar v. State, 55 Tex. Cr. R. 307, 116 S. W. 819; Giles v. State, 60 Tex. Cr. R. 436, 132 S. W. 359; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. We have given attention......