Staples v. State

• Decision Date: 03 March 1915
• Docket Number: (No. 3418.)
• Citation: 175 S.W. 1056
• Parties: STAPLES v. STATE.
• Court: Texas Court of Criminal Appeals

175 S.W. 1056

STAPLES v. STATE.

(No. 3418.)

Court of Criminal Appeals of Texas.

March 3, 1915.

Rehearing Denied March 31, 1915.

Dissenting Opinion April 28, 1915.

Appeal from District Court, Smith County; Barney Briggs, Judge.

Bernice Staples was convicted of seduction, and he appeals. Affirmed.

Simpson, Lasseter & Gentry and J. S. McIlwaine, all of Tyler, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

At the September term, 1914, the grand jury of Smith county returned an indictment against appellant, alleging that:

"On or about the 15th day of February, A. D. 1913, in Smith county, Tex., appellant did then and there unlawfully seduce Tempie Roberson, an unmarried woman under the age of 25 years, and did then and there obtain carnal knowledge of the said Tempie Roberson by means and in virtue of a promise of marriage to her, previously made by him."

When the case was called for trial appellant, in addition to his plea of not guilty, filed a plea of former conviction. It appears that, at the term of court preceding the one at which appellant was indicted, the prosecuting witness, Tempie Roberson, and her mother and father, Victoria and W. T. Roberson, attended court to appear before the grand jury, but they were not permitted to go before the grand jury. Only Mrs. Roberson was called in, and she was immediately excused without being permitted to give any testimony. After the girl and her mother and father had remained all day, waiting to be called before the grand jury, Mr. Roberson says the foreman told them, "You are excused for all time"; that none of them were permitted to go before the grand jury and give any testimony. Horace V. Davis, assistant county attorney of Smith county, testified:

"I was a little bit vexed and did not like it very much because it seemed the grand jury would not have the witnesses before them; that was a sort of logrolling grand jury."

After that grand jury adjourned Mr. Davis took the affidavit of E. A. Tarbutton, in which it was charged that:

"On or about the 1st day of March, 1913, in the county of Smith and state of Texas, Bernice Staples, an unmarried man, did unlawfully have habitual carnal intercourse with Tempie Roberson, an unmarried woman, without their living together, from said date above written, since and up to on or about the 1st day of July, 1913."

On this complaint Mr. Davis filed an information on the 18th day of March, 1914. There is nothing in the record to show that appellant was ever arrested on this complaint and information, but Mr. Davis testified that appellant's counsel requested him not to send the officers after appellant, but to let him know when the complaint was filed, and he would have appellant come down, and he thought appellant would settle it. Three days later, the record discloses, a plea of guilty was entered, and a fine of $50 assessed against appellant, he later sending a check to his attorney who paid the fine and costs. It is on this conviction for fornication appellant relies to sustain his plea of former conviction, and a bar to a prosecution for seduction.

Mr. Davis testified he was not present when the plea of guilty was entered or paid. The county judge, J. F. Odom, who, after testifying that he was county judge of Smith county at the time, says:

"I was not in town at the time this plea of the defendant of guilty to the charge of fornication was entered. I made no promise whatever in connection with that plea of guilty to fornication. Nothing was said to me about any immunity in connection with it from further investigation of it; I never heard anything about that before. I never heard of that before."

The record is silent as to who accepted his plea of guilty and assessed this fine against appellant, but it is made clear by the record that no one authorized by law to accept a plea of guilty to this offense and assess the punishment did do so. The county judge, the only officer known to our law, who was authorized to accept a plea of guilty and assess the punishment, swears most positively he did not do so. The defendant was not arrested, did not appear in court, and this entry and judgment is entered by some one (the record does not disclose who) who was not authorized in law to assess punishment in this character of case, and under such circumstances we do not think a plea of former jeopardy is sustained. In Ex parte Thompson, 57 Tex. Cr. R. 438, 123 S. W. 612, it was held that a conviction at a term of court not authorized by law is invalid, and must be treated as a nullity; that the judgment is void. It follows that, as the plea of guilty was entered at a time when the court was not in session, at a time when the judge of the court was absent, and the punishment fixed by a person (not disclosed) unauthorized by law to assess the punishment, the judgment entered is void and could not be a basis for the plea of former conviction, and the court did not err in so holding. It has always been held that a plea of guilty could not be received or entered when the court was not in session, and the Legislature, that pleas of guilty might be accepted at other times than a regular term of the court, by act of the Twenty-Second Legislature, approved April 21, 1891, authorized county courts to hold special terms to receive pleas of guilty. But in this instance the court was not in session, either in regular or special term; the judge was not even in the courthouse, much less in the courtroom, and he did not accept the plea of guilty nor assess the punishment. Ex parte Jones, 46 Tex. Cr. R. 433, 80 S. W. 995.

But in case the court had been in session either in regular or special term, the county judge present, and the plea of guilty regularly entered by his attorney, would the conviction for fornication bar a prosecution for seduction under the facts in this case? The indictment alleges that the offense of seduction was committed on or about the 15th day of February, 1913. Miss Temple Roberson testified that the first act of intercourse took place on or about the 15th day of February, somewhere along in February. She testified that after this first act of intercourse, the acts of intercourse continued along all during the year up until about the last of July; that he had intercourse with her every two or three days (on every suitable occasion) until defendant went to his mother's, which occurred about the 1st of August. Seduction is constituted by one single act of intercourse under a promise of marriage, and it must be based upon the first act of intercourse. No matter how many acts may be testified to, if the injured female was not a virgin when the first act occurred with the person charged with the offense, under our decisions no conviction could be had, nor could the prosecution be based upon any other than the first act. If when the first act occurred the prosecution should not be begun until three years thereafter, the offense of seduction would be barred, even though he had continued to have intercourse with the girl during all the time, even up to the day of the filing of the indictment. Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208. The offense of seduction was a completed offense when the first act of intercourse took place if the female was induced to submit her person to appellant under a promise of marriage, brought about by protestations of love and affection and his conduct.

The information charging fornication alleges the offense to have been committed by appellant by having habitual carnal intercourse with Temple Roberson. One act of intercourse would not authorize a conviction under such an information — the state was required to show that it was a habit of appellant to have intercourse with the female whenever suitable opportunity was afforded. As said in Hilton v. State, 41 Tex. Cr. R. 193, 53 S. W. 113, an occasional act is not sufficient to show "habitual" intercourse, much less one act. Under the testimony of Miss Roberson there could be no doubt of appellant committing the offense of seduction, and, under the testimony of both Miss Roberson and appellant, that he thereafter committed the offense of fornication. There is in this record no dispute about the question of habitual carnal intercourse, for both appellant and Miss Roberson so testify. The only dispute is as to whether or not the first act was obtained under and by virtue of an engagement to marry — Miss Roberson affirms it was so obtained — this appellant denies. And as the evidence offered in behalf of the state would show that appellant first committed the offense of seduction by having an act of intercourse induced and brought about under a promise to marry the girl, and the testimony of both the state and defendant would show that thereafter the offense of fornication was committed by appellant by having habitual carnal knowledge of the girl, we are at a loss to understand how it can be seriously contended that he could not be prosecuted and convicted of both offenses. It is not a carving of an offense out of one transaction. According to both the witnesses for the state and for the defendant, even according to the defendant himself, there must have been some 25 or 30 or more transactions between them. It was a matter of almost daily occurrence while the appellant was boarding at the home of the father of the prosecuting witness. We entirely agree with the contention that, if there is but one transaction, the state can cut or carve but once, and having been prosecuted and convicted of the offense carved out of the transaction, there can be no further prosecution for the transaction out of which the offense was cut or carved. But we do not understand how any one can contend that the evidence in this case shows but one transaction. The transactions were almost numberless. If A. goes to the house of B. and steals therefrom at the same time two watches, one belonging to B. and one to C., one conviction for...