Stoker v. State

• Decision Date: 29 November 1922
• Docket Number: (No. 6816.)
• Citation: 245 S.W. 444
• Parties: STOKER v. STATE.
• Court: Texas Court of Criminal Appeals

245 S.W. 444

STOKER v. STATE.

(No. 6816.)

Court of Criminal Appeals of Texas.

November 29, 1922.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

Mark Stoker was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

Russell & Seale, of Nacogdoches, for appellant.

W. B. Bates, Dist. Atty., and S. M. Adams, both of Nacogdoches, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The offense is assault with intent to rape; punishment fixed at confinement in the penitentiary for a period of five years.

Nettie Rogers, the subject of the alleged assault, was a girl 16 years of age, residing with her parents. The occurrence upon which the prosecution is based took place in the morning before breakfast. The appellant had spent the night at her home. She slept in the room in which her mother and two babies slept. Her mother had left the room to prepare breakfast and her father was engaged about the premises. She awoke and discovered the appellant sitting on her bed and holding in his hand her left hand on which she had a ring. She struggled to get up, and he put his hands on her breast and other parts of her body. A child cried, and she told appellant that he had better leave, that her mother would be coming. She dressed and "raised a racket" about the ring, and told the appellant that she wanted it. She was crying. Appellant denied having the ring. She told him that he did, as he had taken it off her finger. While the appellant was on the bed, he said:

"Honey, will you promise to meet me at the gap when I start home. If you will, I will give you some money and tell you how to make more money."

The witness said:

"Then I tried to get loose from him. When the baby cried he left. While the baby was crying I told him that mother was coming and he had better leave. I was off the bed then, and he had hold of my arms. He never attempted to crawl in bed with me after I roused up. He kissed me after I roused up and began to cry. * * * After breakfast, papa called me out and asked me if I had gotten my ring."

While out at the car, the appellant wanted the witness to apologize. She finally apologized about the ring, but not about the other matter. Before he left, she had told her father about a part of what the appellant had done. She told her father about appellant putting his hand on her face and about getting the ring.

The house in which the prosecutrix and her parents resided had three sleeping rooms, a gallery in front, a kitchen, and a back porch. The appellant slept on the porch, which could be reached only by passing through one of the rooms. One room was occupied by the father of the prosecutrix and her grandmother; one room was occupied by the prosecutrix, her mother, and two small children.

The father arose early and fed his stock. He returned and woke his wife, and she went to prepare the breakfast. The father then went to call the appellant to prepare for breakfast and found him dressed and walking on the gallery. He washed his face and sat down to wait for breakfast. Quoting the witness, he said: "About that time my daughter came out of the house crying and begging for her ring," and she said to appellant: "I want my ring," and he began to pacify her and said: "You have lost it or laid it down somewhere and forgot where you put it." She then went into the kitchen where her mother was. Her mother came out at once and said to appellant: "Have you been in her room?" He said: "No, I have not been there bothering her." The witness said:

"My wife went back and pretty soon she said that breakfast was ready, so we went in and ate breakfast, and after that we came back out on the gallery. The girl was still crying." The father asked the appellant if he had been in Nettie's room, and the appellant said that he had.

The witness said that the appellant, on the night previous, had complained that his kidneys were giving him trouble and at times demanded immediate attention; that such was the situation on the morning in question, and that he did not want to go out on the gallery without knowing who was in the room, and he called to find out; that he did not want to "make water" without knowing who was in the room; that he had gone in the room to see who was in there before he went out on the gallery to "make water." Appellant, the father, and the daughter walked out to appellant's car, and she said: "Papa, he was; he came in there," and she told the witness about appellant holding her hand and calling her; that she woke up and felt fainty-like, as she was subject to fainty spells. Appellant then begged that the matter be overlooked. He exposed his pockets to show that he did not have the ring. The witness said: "I am going to let you go, but will investigate the matter further. When I...