Stone v. State

• Decision Date: 29 April 1903
• Parties: STONE v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 956

STONE v. STATE.

Court of Criminal Appeals of Texas.

April 29, 1903.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Earnest Stone was convicted of rape, and appeals. Reversed.

Anderson & Anderson and Jack Beall, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 10 years.

The evidence introduced covered a period of several months, and many acts occurring between appellant and the girl. There was a serious contention as to the age of the girl, with the preponderance of the evidence, as we view the record, decidedly in favor of the conclusion that she was over 15 years of age at the time of the alleged rape. The language of the alleged ravished girl and her sister show them to be women of the most abandoned order. Their deportment, manner of narrating the events, and their conduct, glorying in their own shame, was better worthy, or perhaps unworthy, of inmates of the brothel, than that of respectable women whose honor and virtue were to be upheld by the punishment of a rapist.

As stated, the transaction covered several months of time and many acts, which went before the jury without objection. Motion was made to require the state to elect upon which transaction it would ask conviction. This was partially granted; that is, the state elected "the first full act of intercourse happening at Dunn's schoolhouse, as shown by the testimony of Annie Heury," the alleged injured female. There is some confusion in the testimony in regard to when this full act of intercourse happened at Dunn's schoolhouse, as testified by Annie Heury. The state should have been required to select some specific act as to time and place. In this connection, the court charged the jury: "If they believe from the evidence before them, beyond a reasonable doubt, that the defendant, Earnest Stone, did, in the county of Ellis and state of Texas, and in Dunn's schoolhouse, at any time within one year previous to the filing of the indictment herein—January 14, 1903—penetrate the female organ of Annie Henry, with the male member of his, defendant's body, and did have carnal knowledge of the person of Annie Heury, either with or without her consent, or with or without the use of force, threats, or fraud, and that it was the first time he, defendant, had carnal knowledge of the person of Annie Heury in Dunn's schoolhouse, if he had such; and if you further believe from the evidence, beyond a reasonable doubt, that at the time defendant Earnest Stone had such carnal knowledge of the person of Annie Henry, if he did, that she, the said Annie Heury, was under the age of 15 years, and was not the wife of defendant—then it would be the duty of the jury to find defendant guilty as charged," etc. In this connection the court further charged the jury: "That the state, upon motion of defendant, has been required to elect and state upon what particular act of unlawful carnal intercourse, if any, which defendant may have had with Annie Heury, it relies for a conviction; and the counsel for the state have made such election, and they insist and charge that defendant did have carnal knowledge of the person of Annie Heury in Dunn's schoolhouse, in Ellis county, Tex., several times; and they further elect to rely upon the first act of unlawful carnal...