Stafford v. State

• Decision Date: 19 May 1926
• Docket Number: (No. 9706.)
• Citation: Stafford v. State, 285 S.W. 314 (Tex. Crim. App. 1926)
• Parties: STAFFORD v. STATE.
• Court: Texas Court of Criminal Appeals

285 S.W. 314

STAFFORD v. STATE.

(No. 9706.)

Court of Criminal Appeals of Texas.

May 19, 1926.

State's Rehearing Denied June 23, 1926.

Commissioners' Decision.

Appeal from District Court, Hood County; J. B. Keith, Judge.

Bud Stafford was convicted of rape, and he appeals. Reversed and remanded.

Chandler & Pannill and Oxford & Johnson, all of Stephenville, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BERRY, J.

The offense is rape, and the punishment is 15 years in the penitentiary.

The prosecuting witness testified, in substance, that the appellant took her and another woman out near the edge of the town of Stephenville and by force had carnal knowledge of her. The record bristles with doubt and uncertainty as to the question of consent to the alleged act of intercourse on the part of the prosecuting witness. The trial court recognized this in his charge, and charged directly and pertinently on the question of feigned resistance.

The mother of prosecutrix, among other things, testified that the next morning after the alleged rape had occurred the night before she examined prosecutrix and found bruises on her, and in addition made the following statement:

"Her periods were not on at that time; they came on her about the 20th, about three days after the 17th. Before this ever happened she had been just as healthy and as regular as a child could be. This was the 20th, and it lasted 10 days, up to in January. Her health has never been no account since that time."

With the record in this condition, the appellant offered to prove by Clay McCluskey that in the month of September, 1924, the alleged rape having occurred in December, 1924, he had carnal intercourse with the prosecuting witness with her consent. By the same witness appellant offered to prove that he had intercourse with her in October, 1924. By the same witness he offered to prove that in the fall of 1924 the witness Earl Mathews and Theron York and the prosecuting witness drove in a car to a place several miles east of Stephenville, and that said McCluskey again had intercourse with prosecutrix with her consent, and that Mathews and York at different times that night went off with prosecutrix in the woods and stayed 15 or 20 minutes, after which all four of the parties returned to town.

He further offered to prove by the same witness that during the fall of 1924 he and Theron York and prosecuting witness again rode out at night in a car, and that, while York was out of their presence, he and prosecuting witness had intercourse, and that thereafter on said occasion the witness absented himself and left York and prosecuting witness for a period of several minutes, and that then all the parties got together and returned to Stephenville in said car.

Appellant also proposed to prove by this witness that in the fall of 1924 the witness, Albert McPherson, Theron York, and the prosecuting witness drove out east of Stephenville some 3 or 4 miles, and that McPherson and York got out of the car at the request of the prosecuting witness and left said witness and the prosecuting witness in this case in said car on the back seat, and that witness had intercourse with the said prosecuting witness with her consent, and that a short time thereafter the witness got out of the car, and that York went to said car and spent several minutes with the prosecuting witness, and then returned to where witness was, and that then the said McPherson went to said car and spent several minutes with the prosecutrix in the back of said car, and that then all of said parties returned to Stephenville.

Appellant offered to prove by the witness McCluskey that during the fall of 1924 the said witness had a conversation with the said prosecuting witness in Stephenville, and she agreed to meet him at the barn at her house that night, and that he did meet her there, she being dressed in her nightgown, and that a noise which prosecuting witness said was created by her mother caused the witness to leave.

Appellant also offered to prove by the witness Fred Stafford that in September, 1924, the said Stafford, the prosecuting witness, and Robert Williams returned from Dublin, Tex., and the prosecuting witness was driving the car, and the said prosecuting witness drove the car off of the highway onto a neighborhood road, stopped the car, and asked the parties which wanted to go first, and that thereupon Stafford stated that he did, and the prosecuting witness asked Williams to go away from said car, and that, after he had gone, Stafford had intercourse with the prosecuting witness in said car with her consent, that thereafter Stafford left the car and remained away for a short time, Williams having returned to said car, and that thereafter all of the parties returned to the town of Stephenville.

He also offered to prove by the witness Stafford that he and Dick Ayers drove in the nighttime to Dublin, Tex., and that on their return Stafford had intercourse with the prosecutrix with her consent, and thereafter Stafford left the car in charge of Ayers and the prosecutrix and remained away from it a while, and then they all returned to Stephenville, and that thereafter, in October, 1924, prosecutrix, together with Fred Stafford and Wayne Kay, took a drive in the car at night when Stafford again had intercourse with the prosecutrix and again left the car in charge of the prosecutrix and Kay.

He also complained at the court's action in excluding the testimony of Robert Williams, which, if true, was to the effect that he in the month of September, 1924, had intercourse with the prosecutrix.

The court also excluded the testimony of Dick Ayers...