Stewart v. State

• Decision Date: 16 May 1945
• Docket Number: No. 23102.,23102.
• Citation: 188 S.W.2d 167
• Parties: STEWART v. STATE.
• Court: Texas Court of Criminal Appeals

188 S.W.2d 167

STEWART v. STATE.

No. 23102.

Court of Criminal Appeals of Texas.

May 16, 1945.

Rehearing Denied June 20, 1945.

Appeal from District Court, Hunt County; Charles Berry, Judge.

W. H. Stewart was convicted of rape, and he appeals.

Affirmed.

C. C. McKinney, of Cooper, T. J. Ramey, of Sulphur Springs, and G. C. Harris, of Greenville, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the crime of rape, and by the jury convicted and given a term of five years in the penitentiary.

The facts are rather voluminous, and the record contains 39 bills of exceptions. We will only recite sufficient facts to endeavor to make clear our rulings herein.

The complaining witness was a girl, shown by the State's testimony to have been born on September 16, 1929, the date of the alleged offense being July 22, 1944, making her of the age of fourteen years at such time.

The State's testimony shows a rape, not only by force, but it is also shown by appellant's testimony that he had carnal intercourse with this girl, he claiming same to have been with her consent. The jury's verdict found him guilty of having such intercourse with a female under the age of eighteen years. Under such a finding appellant should be restricted to the defense of prior unchastity of this girl, and such defense finally applies only if she is over fifteen years of age at the time of the act. See Art. 1183, P.C.

The testimony relative to the witness' age is of such force and cogency that one cannot but be convinced that at the time of this complained of occurrence the young lady lacked about a month of being fifteen years of age. See Muniz v. State, 132 Tex. Cr.R. 49, 102 S.W.2d 427. However, it is to be noticed that it was shown by appellant's witness that prior to this occurrence this young lady had said, relative to her age, that she was sixteen years old. Appellant, in his testimony, admitted the act of intercourse, but claimed same to have been with the consent of the girl, and also testified to a previous act with her with her consent.

Appellant denies the use of any force towards the accomplishment of his act, but claims that the prosecutrix willingly entered into the act, and no violence or force of any kind was used by him. There is no contention made relative to her age other than that above alluded to. Nowhere does appellant say what he thought the young lady's age was. The doctor who was present at her birth gave the date as September 16, 1929, as also did the mother and father of the young lady, and the county clerk testified that the birth certificate of the child showed it to have been born on September 16, 1929, and no attempted contradiction of this date appears in the record. Under these facts, and appellant's testimony, the jury found appellant guilty of rape under the age of consent, and we confess we are unable to see how they could have done otherwise. The only method in which an error could have materially affected this case was relative to the issue of suspended sentence, appellant himself having fixed his guilt.

We, therefore, come to a consideration of the major portion of appellant's bills of exceptions, many of which relate to the cross-examination of appellant's character witnesses. In bill No. 2 the appellant proved by the witness A. A. Brice his good reputation as a peaceable and law-abiding citizen, and the State, upon the cross-examination of Mr. Brice, asked the witness: "Did you hear, prior to July 22, 1944, about him being accused of stealing a pair of gloves from the Chicago Store in Cooper?" which question was objected to by appellant's attorneys upon the grounds that "the matter inquired about was not definite in point of time; that the district attorney did not expect to make proof of that fact and could not do so, and because the district attorney was not acting in good faith, prejudicial to the rights of the defendant and inflammatory." No answer of the witness is shown in said bill. The trial court qualifies this bill by showing that appellant had properly filed his application for a suspended sentence herein, and that while on the witness stand in his own behalf appellant testified, in answer to questions by his own counsel, that at the time of his trial for rape he was also under a felony indictment for the offense of arson; that the charge of arson was returned against him at the same time as this charge of rape. Again he testified in answer to questions by his counsel: "Prior to the present charge and accusation, of date July 22, 1944, I was never charged with any violation of the law whatsoever in any court." It is also shown in such qualification that the witness Brice had testified, in answer to the following question propounded by appellant's counsel: "Have you ever heard in your life prior to July 22, 1944, that the defendant has ever been accused of anything?" to which the witness answered "No, sir." Again, Mr. Brice was asked by appellant's counsel: "Have you ever heard he (defendant) had been accused of stealing from anybody?" to which witness answered: "No, sir, I have not."

Bill No. 3 relates to a similar proceeding relative to this same witness, Brice being asked: "Prior to July 22, 1944, did you hear about him being accused of theft of a package from an automobile on the square in Cooper, and taking it out and throwing it in a roadside ditch about Christmas before that?" to which the same objections were leveled as is shown in the preceding bill No. 2, and the same qualifications are appended to this bill No. 3.

Bill No. 4 relates to the same witness being asked: "Prior to July 22, 1944, did you hear of him being charged or accused of putting sugar in the gasoline tank of the school teacher over there?" with the same objections and qualifications as are set forth in the statement relative to bill No. 2 above.

Again, in bill No. 5 the objected to question to the same witness being: "Prior to July 22, 1944, did you hear about him being accused of stealing gasoline from the Antioch filling station?" with the same objection and qualification as set forth in bill No. 2.

Bill No. 6 relates to the district attorney being permitted to ask this same witness if he had heard about appellant being indicted for burning the school house in Cooper. This bill is in the same condition as those previously referred to, and shows no answer from the witness to such question.

Bill No. 7 relates to the same witness being asked the following: "I will ask you if you ever heard, prior to July 22, 1944, of him being charged with breaking into and theft of a quantity of rubber goods from the Hooten Drug Store in Cooper, Texas?" with the same objections and qualification as the preceding bills.

Bills Nos. 8 and 9 relate to the testimony of Roy Cornish, bill No. 8 being similar to the above bills, both concerning witness having heard of appellant being accused of and indicted for the burning of the Cooper school house. There appears in the bill no answer to this question, but the same objections and qualification again are present.

All these above-mentioned bills can be treated together. Appellant had filed a plea for a suspended sentence in the event of a conviction, and under the statute his reputation up to the time of the trial became a legitimate matter of inquiry. In support of his good reputation as a peaceable law-abiding citizen he presented a large array of witnesses, who uniformly gave him a good reputation, the State countering, however, with a lesser number to the contrary. It is said that one's general reputation is what is generally said of him in the community in which he lives,— see Words & Phrases, Perm. Ed., Vol. 37, p. 78,—and, of course, is necessarily based upon hearsay, or on what people generally say about him. It has long been held in this State that where one qualifies as being familiar with such a matter of opinion upon the part of the public, his means of knowledge as well as his sincerity of belief in his expressed opinion also become a material and proper matter of examination, and oftentimes render admissible a reference to specific acts which seem to be pertinent.

We said in Brown v. State, 92 Tex.Cr.R. 147, 242 S.W. 218, 220: "Specific acts become available upon cross-examination for the limited purpose of measuring the weight of the witnesses' testimony, but are not pertinent as original testimony upon the issue of reputation. Howard v. State, 37 Tex.Cr.R. 494, 36 S.W. 475, 66 Am.St.Rep. 812; Branch's Ann.Tex. Penal Code, p. 617; Underhill on Crim. Evidence, 325; 12 Cyc. of Law & Proc., p. 416, note 53; Holsey v. State, 24 Tex.App. 35, 5 S.W. 523. A general inquiry such as that in question, especially when it has already been developed that appellant had not been convicted of a felony, tended to elicit evidence which was not competent upon the issue of reputation as original testimony. Inquiry should be confined to the knowledge of the witness of the general reputation. His means of knowledge may be tested by cross-examination drawing his attention to specific acts which are pertinent. This, we think, was the rule at the time the Suspended Sentence Law was enacted, and is the rule that should still be observed."

The witnesses to appellant's good reputation were each asked the questions relative to whether they had heard of appellant's reputed misconduct, and all answered that they had not. If the State's attorney had no basis for the asking of such questions, then his action in asking same would not have been in good faith, and should not have been tolerated by the trial court, but we find no evidence of such bad faith upon such attorney's part shown herein, and under such a plea the legitimate right of cross-examination should not be abridged. See Vallone v. State, 141 Tex. Cr.R. 220, 147 S.W.2d 227, opinion on rehearing. Also see Texas Law of Evidence, p. 862, where it is said: "Witnesses...