Smith v. State

• Citation: 68 S.W. 995
• Parties: SMITH v. STATE.
• Decision Date: 11 June 1902
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

68 S.W. 995

SMITH v. STATE.

Court of Criminal Appeals of Texas.

June 11, 1902.

Appeal from district court, Falls county; Sam R. Scott, Judge.

Jack Smith was convicted of rape and appeals. Reversed.

Rice & Bartlett, for appellant. Robt. A. John, 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 75 years; hence this appeal.

Appellant made a motion for continuance. Without entering into a discussion of it, we would observe that it does not occur to us that the absent testimony was material or probably true. The court did not err in overruling the same. Bills of exception Nos. 3, 4, and 5 present no error. When the prosecutrix, Elma Walker, was on the stand, the state was allowed to prove, over defendant's objections, that after the carnal intercourse, which she testified to as having occurred at or about June 1, 1901, at her home in the section house at Gurley, in Falls county—about the 2d of August, 1901, thereafter—upon agreement between herself and defendant that Fuller was to marry her and turn her over to defendant, that they went together to Bell county, and, while in Belton, Fuller procured a marriage license and married her,—defendant not being actually present at the marriage, but in the house while it was being performed; that after such marriage Fuller abandoned prosecutrix and turned her over to defendant in pursuance of their agreement; that thereafter she and defendant went from Bell county to one Ed Walker's, a relative of defendant, in Milam county. They stayed there two weeks or more, cohabiting together. That thereafter they returned to Temple, in Bell county, and there lived together as man and wife for 2½ months. That after that they went to Somerville, in Burleson county, where they lived together as man and wife for a good while. All this evidence was objected to because the acts occurred long after the alleged rape as charged in the indictment, and occurred in other and different counties than Falls county, and that said acts could not explain or elucidate defendant's actions in Falls county in the commission of the alleged rape. Appellant objected to all the acts after said marriage of prosecutrix with George Fuller, because she was then of full age, under the law, and had all the rights and privileges of a married woman; and because rape by consent on such a person cannot be committed. By another bill of exceptions, appellant objected to his cross-examination by the state in regard to the same matters, urging the same grounds of objection. As they involved the same questions, we will treat both of them together. In support of the state's contention that said testimony was admissible, we are referred to the cases of Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431, and Manning v. State (Tex. Cr. App.) 65 S. W. 920. In Hamilton's Case, the acts introduced in evidence were prior in point of time to the act for which appellant was being prosecuted. So the question there was not raised. In Manning's Case, the acts introduced in evidence were shortly after the alleged act for which appellant was being tried. The objection there urged, however, was not that the acts were subsequent, but that they related to other and distinct offenses. The court in said case held the testimony was admissible as being transactions between the same parties, and tending to show an intimacy and familiarity between them which, with other circumstances, would tend to show the guilt of appellant as to the transaction charged against him in the indictment. This, as we understand it, is in accord with the authorities. Williams v. State, 8 Humph. 583; State v. Knapp, 45 N. H. 148; State v. Walters, 45 Iowa, 389. But all these cases relate to prior acts, and not to acts or conduct occurring subsequent to the charge in the indictment. Whart. Cr. Ev. § 35, lays down the proposition in general terms that, "in prosecutions for adultery or for illicit intercourse of any class, evidence is admissible of sexual acts between the same parties prior to, or, when indicating continuousness of illicit relations, even subsequent to, the act specifically under trial. Prior sexual attempts on the same woman are admissible under the same limitations, on a trial of rape." We have examined the authorities, and so far as we are aware there is no case where the party was being tried for rape, in which subsequent acts to that charged in the indictment were admitted in evidence. But it is urged by the state that rape of a girl under 15 years of age, with her consent, is, as to the act of carnal intercourse, analogous to cases of adultery and incest; and that the rule with reference to the admission of testimony in such cases is applicable here; that is, that any testimony which would tend to show familiarity between the parties involving like offenses not too remote, though subsequent, would be admissible in evidence as a circumstance tending to show the likelihood that appellant committed the offense charged against him. We confess that the reasons for the admissibility of such testimony in the one case seem equally cogent in the other. Burnett v. State, 32 Tex. Cr. R. 87, 22 S. W. 47, and particularly see Bish. St. Crimes, § 682. However, as stated before, no authority can be found extending this doctrine to cases of rape; and we apprehend it will be found that even in incest and adultery cases, being continuous offenses, such testimony is admissible only as tending to...