Smith v. State

• Decision Date: 26 March 1903
• Citation: 73 S.W. 401
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 401

SMITH v. STATE.

Court of Criminal Appeals of Texas.

March 26, 1903.

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.

BROOKS, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 37 years. Upon a former appeal the judgment was reversed, and, for a statement of the facts, see Smith v. State, 68 S. W. 995.

The first bill of exceptions complains of the following matter: Over the objections of the defendant, the state was permitted to prove by Elma Walker, prosecutrix, the following: "I left home because defendant asked me, while my mother was gone, if I would leave home with him, and I told him I would. There was a gate close to our house, and he told me if he motioned to me to go to the gate, it meant for me to go at night, and he would come for me and we would go off. The evening of the day I left home he was up at the store, and I motioned to him if I must go to the gate, and he said `Yes'; and after that he wrote me a note, and sent it to the house by a colored man, but the colored man didn't get to give it to me. And so I went down to the gate that night after my mother and father had gone to bed, and when I got there no one was there. While I was at the gate a negro passed along the road, and I asked him if defendant was up at the store, and he said he was. I told him to tell defendant to come down there. Defendant afterwards came, and I told him that I had left home. He says, `Well, come on, and we will go down the road a piece and wait for Curt York and Mr. Fuller.' We did not stay at this gate any time after defendant came to me, but went from there to another gate, north of town, and stayed there until close to daylight in the morning. He had intercourse with me one time that night. From there we went down to old Aunt Lina Coleman's, a negro woman living in this county, and stayed there about five days. I left there with defendant and George Fuller. While at Lina Coleman's, defendant had intercourse with me one time. I knew George Fuller by sight at the time we went to Lina Coleman's. I had seen him pass our house several times. Before I left home the defendant had not said anything to me about George Fuller. Before I left home, defendant told me that we could wait until he got a divorce from his wife, and then he and I would marry. These acts of intercourse occurred at the section house and in the woods and at Lina Coleman's, all in Falls county. At the time I was fourteen years of age. I consented to these acts of intercourse." "To all of which evidence defendant objected because it appeared that said transactions were subsequent to the alleged offense in the indictment, and could and did not tend to elucidate same or throw any light thereon, and was calculated to prejudice the minds of the jury against defendant, and was irrelevant and immaterial to any issue in the case, either collateral or direct." It is not permissible to prove independent and distinct crimes to the one on trial, unless they form part of a system or part of the res gestæ, or to identify the accused. Proof of such other crimes is not admissible, except as stated, under the rules of evidence in this state, and the court was in error in so holding. And in so far as the cases of Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431; Callison v. State, 37 Tex. Cr. R. 216, 39 S. W. 300; Hanks v. State (Tex. Cr. App.) 38 S. W. 173; Cooksey v. State (Tex. Cr. App.) 58 S. W. 103—announce a contrary rule, the same are hereby overruled.

The ninth bill of exceptions complains "that, after the testimony was all in, the state made its election on which act it would rely upon for a conviction, and did elect to ask a conviction for the alleged acts of carnal intercourse at the section house before the prosecutrix left home; that after prosecutrix left home she was permitted by the court to testify as set out in the above bill as to other acts of intercourse with defendant, and conversations and conduct with him, and after such election the court failed and refused to instruct the jury to disregard and not consider the testimony of prosecutrix as to such subsequent acts and transactions." The court should have instructed the jury to disregard this testimony, since, as stated above, the testimony was not admissible for any purpose. However, we are apprised of the fact that we held in Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431, Cooksey v. State, 58 S. W. 103, and perhaps other cases, that such testimony should not be limited, but was admissible to show the probability that defendant committed the offense as charged, in corroboration of the testimony of the prosecutrix. However, we were in error in so holding, inasmuch as said testimony is not admissible for the purpose of corroboration; and where the crimes are extraneous, not connected with, entirely independent of, and distinct from the one on trial, they can shed no light on the trial of accused, and its sole purpose would be to convict accused on general principles—that is, to show that accused was guilty of the crime of rape on trial because he had previously committed other rapes. It could not be corroborative of the prosecutrix for her to testify to one rape, and then corroborate this fact by testifying to another rape. There is no rule of law supporting the proposition that a witness can corroborate herself by swearing to one fact, and then swearing to another fact, and insisting that such other fact was corroborative of the previous statement.

By the second bill it is made to appear: "The state introduced J. W. Spivey, who testified he was a stenographer and took down correctly the testimony of defendant, Jack Smith, while on the witness stand at the former trial; that said stenographic reports, which the state offered as evidence, showed that, upon cross-examination of defendant, he testified (reading from said report): `I don't remember when was the first time I had intercourse with Elma. It was a short while before we went off, but I don't remember how long. I was going along the road, and we met. I don't remember whether that was before or after her mother had left to go to Bosque county. I had intercourse several times with her after that at the section house. I don't know that I was dividing my favors between her and Emma York, but sometimes I would take one of them, and sometimes another. This did not continue up to the time I left the county, because after her mother came back she was here some bit before we left, and I did not talk to her after her mother came back for some time. The first time I spoke to her after her mother came back was when I met her at the gate the night she left home. I don't recollect the date when we first made arrangements to have some one marry the girl, but, after her mother came back from Bosque county and tried to make the girl indict me; I asked my nephew to take her and marry her, and he would not do it. The reason he would not do it was because he was not twenty-one, and he could not get his own license. I met George Fuller in Gurley. I don't know how long he had been living there—only a short time. I explained to Fuller that Mrs. Walker was trying to get the girl to indict me for having intercourse with her, and Fuller agreed that he would marry her. I did not pay him anything.' To all of which testimony defendant then and there objected because the defendant at the time of giving such testimony so reproduced was under arrest, and he had not been warned before the giving of same that it could be used against him." This objection is not tenable. After defendant is placed upon the stand he becomes a witness, and after being sworn, if he testifies, his testimony can subsequently be used by the state, although on the subsequent trial he does not testify. However, we would suggest that upon another trial the court should admit none of said testimony except that portion which details the act of intercourse for which appellant is then on trial.

Appellant further objected because it was incompetent to prove any fact by stenographer's report of evidence taken on the former trial. The court adds this qualification to the bill: "Upon a former trial defendant, Jack Smith, testified as a witness in his own behalf, which testimony was then...