Spearman v. State

• Decision Date: 16 October 1912
• Citation: 152 S.W. 915
• Parties: SPEARMAN v. STATE.
• Court: Texas Court of Criminal Appeals

152 S.W. 915

SPEARMAN v. STATE.

Court of Criminal Appeals of Texas.

October 16, 1912.

On Motion for Rehearing, January 22, 1913.

Appeal from District Court, Titus County; P. A. Turner, Judge.

J. W. Spearman was convicted of perjury, and he appeals. Affirmed.

Rolston & Ward, of Mt. Pleasant, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of perjury, and his penalty fixed at three years in the penitentiary.

At the March term, 1908, of the district court for Titus county, Mrs. Stella Spearman brought suit against J. W. Spearman, appellant, for divorce and to set aside the judgment theretofore, October 10, 1907, procured by him against her in said same court then and there decreeing him a divorce against her. The record discloses that the said suit by Stella Spearman against appellant was tried in said court regularly before the district judge thereof at the October term, October 8, 1908. In that trial, appellant, in the indictment herein, among other things, is charged to have testified falsely and committed perjury, in that he testified on said trial October 8, 1908, that he had never had carnal intercourse with Stella Culpeper, then Stella Spearman, before he married her. He married her on July 29, 1907. There is a good deal of evidence in the case which it is unnecessary for us to here state. Among other things, appellant testified in this case that on the trial of said case, October 8, 1908, he had testified as charged in the indictment, but he claimed his testimony in that respect was true.

From all of the evidence in the record the jury were clearly and fully authorized to believe this state of facts:

Stella Culpeper in February and March, 1907, was a young country girl, uneducated, having attended school very little, was altogether inexperienced in the world, and had not been about much. Appellant at that time was a matured man, perhaps 30 years of age, and was a school teacher, teaching in the country about 10 miles from where Stella and her parents then lived. He was somewhat related to her father. Shortly prior to February, 1907, appellant was at her father's, and induced her parents to let her board in the community near his school, and attend his school as a pupil. They thereupon sent her to a countryman's to board, who lived about one mile from the school building, about the middle of February, 1907, for the purpose of her attending appellant's school. From this boarding house she did attend his school continuously perhaps as much as six weeks until the term closed the latter part of March, 1907. She was 15 years of age February 29, 1907; was not fifteen years of age at the time she began attending his school. She, with other children, and appellant himself, it seems, took their noon lunches to school with them, and remained at the schoolhouse and on the grounds thereabouts at the noon recess, which was usually about an hour. Soon after Stella began attending his school, appellant began to make love to her, professing to love her, etc., and in the early part of March began to solicit and try to induce her to permit him to have sexual intercourse with her. She at first would not consent, but after further solicitation on his part and his promise to her that, if she became pregnant, he would marry her, she yielded to his embrace, and during that month he had sexual intercourse with her three several times, from which and by whom she became pregnant, and a child was born to her December 22, 1907.

Stella missed her menses in April, having been regular for some time before then up to the March period which she had. Appellant repeatedly after March had talks with her thereabouts. She told him that she had missed since March, and he became very uneasy thereabouts. They repeatedly and from time to time from March until July 29, 1907, when they married, talked about her pregnant condition, and he continued to be very uneasy thereabouts. Shortly before their marriage he brought Stella from her home to Mt. Pleasant, the county seat of Titus county, to a boarding house. Even before then he had consulted with a physician at Mt. Pleasant, telling him that in March preceding he had had sexual intercourse with Stella three several times, and was very anxious to know from him whether she was pregnant thereby. While she was at this boarding house he had the physician to pass by it, he to have her out where the doctor could see her, and give appellant his opinion of whether or not she was then pregnant. In this way, without her knowledge, he had the doctor to surreptitiously appear at this boarding house and see her. After the doctor saw her, he saw the doctor, and was very anxious to know what the doctor's opinion was. The doctor could not then tell him, and, while he had told the doctor that she had missed her monthly periods from March up to that time, the latter part of July, 1907, from that fact alone and her then appearance, the doctor could not tell him whether she was then pregnant. At any rate, he then concluded to, and in a few days after this did, marry Stella, and lived with her as his wife from that time to October 10, 1907, the very day on which he procured the said decree of divorce against her. Just before or just after he married the girl he talked to another doctor, and asked him what was good to produce an abortion.

Shortly before the term of the said district court in October, 1907, while appellant was living with Stella as his wife, in the town of Mt. Pleasant, Tex., he brought a suit for divorce against her in said court, had her properly served with citation prior to the term, and on September 25, 1907, had the district clerk of said court, with his attorney, go to his residence and take her depositions. He had her therein in answer to his interrogatories to swear that, when she married him, she had been pregnant about four months; that, so far as she knew, he knew nothing of her being pregnant when she married him; that he had never had intercourse with her prior to his marriage to her, and he was not the cause of her pregnancy. He also had her therein to refuse to answer who was the cause of her pregnant condition; that she knew she was pregnant when she married him, and did not tell him that she was, and that she, that morning, the day she answered the interrogatories, admitted to him her said condition; that she had theretofore denied it to him; that all this testimony by her in answer to these interrogatories was as a matter of fact untrue; that in March, 1907, he had intercourse with her three times, from which and by whom she became pregnant, and that he knew it; that they frequently discussed it, both before and after their marriage; that he instigated her to give this false testimony in his divorce suit against her by representing to her that her pregnancy would soon become publicly known; that she would have a child, all of which, if it became known, would result in the grand jury indicting him and his being sent to the penitentiary because of his having intercourse with her in March, 1907; that she believed his representations in this respect, and gave said false answers to said interrogatories at his instigation and to save him from the penitentiary; that he told her what answers to give to each interrogatory, and she answered as he instructed her; that she loved him, he was to be the father of her child, and she did not want him sent to the penitentiary.

Notwithstanding she answered said interrogatories as stated above and they were at once filed in the court, he continued to live with her as his wife from then until the very morning that he got his divorce, October 10, 1907. On the very early morning of that day he shipped her off to Oklahoma to prevent her from appearing before the grand jury, and avoid any indictment against him for having had sexual intercourse with her before he married her. When she had been in Oklahoma about a month after the grand jury had adjourned, he wrote to her to come back, but not to come to Mt. Pleasant, but stop at Omaha, in Morris county, a small place on the railroad, where he would meet her. She complied with his instructions, stopped at Omaha where he did meet her and took her from there to a neighbor's to stay all night, thence to her uncle's the next day; he paying her hotel bill, etc. When she reached Omaha, and met him on this occasion, he told her he supposed that they had divorced him; that the clerk had thrown the books open, and the judge had seen her depositions and granted a divorce. She then told him that he had promised her he would get no divorce, but that he simply wanted her depositions, to the effect that she had given them, in order to keep him from going to the penitentiary. He said the divorce made no difference, that he would remarry her and live with her. He had nothing whatever to do with her after he first got his divorce from her. She was remarried to a Mr. Simms of Dallas in October, 1910, and at the time of this trial was the wife of Simms. As soon as the case was tried, October 8, 1908, appellant was arrested on complaint for perjury. He gave bond, then fled, and, although diligently sought by the sheriff for two years, could not be found. After two years and five days, he voluntarily surrendered.

In order to show the matter at issue in the divorce suit by Stella against appellant in 1908, the state introduced her petition in that case, his answer, and his divorce decree against her of October 10, 1907. This petition is some seven pages of typewritten matter.

Other than a copy of it in the bill, the bill is very meager, and does not state the matter so that this court can know therefrom the status of the case and the bearing thereof. Appellant's objections thereto were general. He in no way pointed out any special portion thereof that was objectionable, but his objections went to the introduction of it for any purpose whatever. What we have said...