Stephens v. State, 17137.

• Decision Date: 06 February 1935
• Docket Number: No. 17137.,17137.
• Parties: STEPHENS v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W.2d 980

STEPHENS v. STATE.

No. 17137.

Court of Criminal Appeals of Texas.

February 6, 1935.

State's Rehearing Denied April 3, 1935.

Commissioners' Decision.

Appeal from District Court, Hopkins County; Chas. D. Berry, Judge.

C. E. (Elder) Stephens was convicted of rape on a female under the age of 18 years, and he appeals.

Reversed and remanded.

Ramey A. Smith, of Sulphur Springs, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of rape on a female under the age of 18 years, and his punishment was assessed at confinement in the state penitentiary for a term of 15 years.

The record shows that on or about the 5th day of January, 1934, the injured female gave birth to a child at the hospital in the city of Paris, Tex., to which place she had been taken by her father and the appellant on the 23d day of December, 1933. At the trial the injured female testified that the appellant was the father of her child. The appellant did not testify in his own behalf, but introduced a number of witnesses who testified to his good reputation as a law-abiding citizen.

There are a number of bills of exception in the record complaining of various errors alleged to have been committed by the trial court. To discuss all of them would unnecessarily extend this opinion, and therefore we shall confine ourselves to such only as we deem material to a disposition of the case.

By bill of exception No. 9 the appellant complains of the action of the trial court in permitting the district attorney to prove by the prosecuting witness that on the 9th day of January, 1934, she wrote a letter which she placed in an envelope addressed to appellant and handed it to her nurse with the request that she mail it, and which letter reads as follows, to wit: "January 9, 1934, Paris, Texas. Dear old friend: I drop you to let you no I get along fine. Come at once to me sweetheart. It been so lonesome to me. I look for you very day. I been at my boss or at T. F. Darling come by Monday if you can. I wont get away as soon as I can and staw. We never come back any more, So good by by kiss kiss from your old friend. Paris, Texas, Susian."

The envelope with an uncanceled stamp on it bears the following: "Lamar Hospital, Paris, Texas. Mr. C. E. Stephens, Como, Texas, Route 3." The appellant objected to the introduction of said letter as evidence because it did not connect him with the offense; that it was not mailed; that the defendant did not receive it; that he did not have any knowledge thereof or ever acted thereon; and that it was clearly hearsay, which objection was by the court overruled. The court qualified said bill of exception as follows: "Counsel for defendant had elicited testimony from the prosecutrix to the effect that she had made the statement that Bill Simmons was responsible for her condition and had elicited from other witnesses that Thelba Banks had had opportunity for sexual intercourse with her and that father of prosecutrix and his wife had agreed to lay the responsibility of her condition on a person other than defendant, and this letter was admitted for the purpose of assisting the jury in reconciling conflicting statements."

It is our opinion that, notwithstanding the court's qualification to the bill of exception, the letter was not admissible as a circumstance of guilt against the appellant or that it tended to explain or reconcile any conflict in the testimony. The letter was the act and declaration of prosecutrix. It was shown that it was not received by the appellant and was not acted upon by him. In fact, he had no knowledge of it, and therefore it was clearly hearsay. Letters addressed to an individual and shown not to have been received by him would not authorize an inference of assent to the statements contained therein, and would not be admissible against him because it was not only hearsay but was also an ex parte, unsworn statement. It is our opinion that under the facts shown here this letter should not have been admitted in evidence for any purpose, and in support of the views herein expressed we refer to the case of Terrell v. State, 88 Tex. Cr. R. 599, 228 S. W. 240, and authorities there cited; Dawson v. State, 38 Tex. Cr. R. 9, 40 S. W. 731.

By bills of exception Nos. 15, 16, 17, 18, 19, 21, 22, and 23 the appellant complains of the action of the trial court in permitting the district attorney on cross-examination of appellant's witness, who had testified that his reputation as a law-abiding citizen was good prior to the time that he was charged with the offense of which he was on trial, to ask said witness: "Would you undertake the tell the jury that since the rape charge has been filed against him, that his reputation down in the community in which he now resides is good, would you?" to which the witness answered, "No," and similar questions were asked of all of said witnesses for the appellant, and the witnesses were confined in their answers to a discussion of the appellant's reputation from the filing of the charge against him for which he was on trial. We believe that the appellant's contention should be sustained. It is true that, when he filed an application for a suspension of sentence in case of conviction, he put his reputation in...