Tate v. State

• Decision Date: 23 June 1903
• Citation: 77 S.W. 793
• Parties: TATE v. STATE.
• Court: Texas Court of Criminal Appeals

77 S.W. 793

TATE v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1903.

Appeal from District Court, Burnet County; Clarence Martin, Judge.

R. L. Tate was convicted of incest, and appeals. Reversed on rehearing.

The following evidence was introduced on the trial:

The prosecutrix, Dollie Andrews, testified that she was 22 years of age, and late in the evening of April 28, 1902, while her father was away, serving as a member of the grand jury, defendant (her uncle) came to her home. "He was at the lot, taking out his horses, when my stepmother and myself were feeding the cow. He came to where I was feeding the cow, and said he would feed for me. I told him no, I could feed her. He then asked me if he might come to my bed that night. I told him no. He said he believed he would come anyhow. I told him he had better not. He said it would not hurt. I told him he must not come. He then said something about `all right.' My stepmother went to the house before I did. She was not present, and did not hear this conversation between us. Defendant ate supper and spent the night. Soon after we had this conversation spoken of at the lot, defendant went to Capt. Badger's to phone Olive about a coffin for Mr. Shugart. Defendant left about 8 o'clock, and returned in about 10 minutes. In answer to the message Olive came to our house, and remained about 20 or 30 minutes. My two sisters, Bertha and Lottie, went to Uncle Allie Tate's to attend an entertainment that night, and did not return home until 11:30 o'clock. Brother George came home about 9 o'clock, but remained only a short time, and did not return until about 4 o'clock in the morning, and left the next day with a train of stock. I retired that night about 9:30 o'clock. My mother and two little half-sisters and defendant were the only persons at home. I slept in the middle west room. My mother and two little half-sisters slept in the room east of and adjoining my room, which is separated by a partition wall with a door between. Defendant slept in George's room, which is in the southeast portion of the building, east of the hall, and south of mother's room. My bed was near the partition wall between my room and mother's, and mother's bed was located in the southeast corner of her room. The door between was open. * * * I do not know exactly how long I slept, but I was awakened by a man on my body. He had complete sexual intercourse with me. I made no outcry or resistance, because I was so frightened I could neither speak nor move. I tried to speak and move, but could not. He remained on top of me about five minutes after I woke up. He then got up and left the room. Nothing was said by either of us. He had on his night clothes. He went out through the dining room and kitchen. The night was dark and stormy, and I recognized him as defendant by a flash of lightning. My sisters returned from my uncle's about 11:30. I was awake when they returned, and asked them the time. I think it was about half an hour after the assault. I did not say anything to them about the assault. They slept in the same room I did. I did not get up for breakfast the next morning, and when I did defendant had gone. I have not seen defendant many times since the occurrence, not more than three. He has visited our house since. I went to work next morning, and remained until noon, and in the evening watched the loading of cattle on the cars." She states that her health was not good, and changed for the worse on May 15th; that her menses ceased on April 16th, and she discovered her pregnancy for the first time on October 17th, when Dr. Yett examined her, at which time she told Dr. Yett, her mother, and father who was responsible for her pregnancy. And on October 18th, accompanied by her father, she went to San Antonio, and remained there until February 14, 1903, when she returned home, having given birth, on January 22d, to a child. The child was placed in an orphans' home, and afterwards died. She states this was the only time she has ever had carnal intercourse with any man, and it was without her consent.

Defendant testified substantially that he spent the night of April 28, 1902, at the home of W. H. Andrews, father of prosecutrix, but denies having the conversation in the lot detailed by prosecutrix, and denies being in her room and having carnal intercourse with her on that night. That the first he knew of prosecutrix's pregnancy was when Dr. Yett told him of it in November or December, 1902, and about that time Evans talked to him also about it, and said they had sent Dollie off. "Evans said Dollie had made a statement about the matter, and that she had accused him [defendant] of being to blame for her condition. I told Evans the accusation was false, and if it was laid to me it was a blackmailing scheme. He said he knew nothing about that, but he was a friend to me and Henry Andrews, and it would take money, and lots of it, to meet the expenses, and asked me to help about the matter. I first refused to do it, but Evans said it was nothing but right for me to do so, as she was kinsfolk, and Andrews was not able to pay the expenses, and by doing this the matter would be hushed up. He told me that he had put up $150 and Dr. Yett had furnished $100 toward paying the expense of keeping Dollie away. I then gave Evans a check for $100, and a little later another check for $200. At the time I gave this money I told him I hated like the devil to do it, as it might look like I was guilty of the charge. I told him at the time that I did not give the money as hush money, but gave it through sympathy for her father, and to hush up a family scandal. I admitted to Evans that I was no angel, and that there had been times in my life when such things might have been charged against me, but not with a blood relative, for that was too tough." R. H. Evans testified with reference to this conversation substantially as did the defendant. Bertha Andrews and Lottie Andrews, sisters of prosecutrix, testified that they were away from home on the evening of April 28, 1902, from about 7:30 o'clock until about 11:30, and on their return prosecutrix asked the time, and it was 11:30. It was the night Tom Shugart died, and was stormy. That they slept together in a bed in prosecutrix's room. W. H. Andrews, the father of prosecutrix, testified: That he was a member of the grand jury, and was away from home on the 28th of April, 1902. That he lived at Marble Falls, and the grand jury was in session at Burnet. About May 15th his daughter quit work because of sickness, and she was sick all the summer, and in bed a great portion of the time. That he went to Marlin about 15th of June, and was gone four weeks. When he returned his daughter was still sick, though improved. That about October 1st she went to her aunt's, in the country, for a week. Dr. Yett was called to see his daughter several times from May to October, and prescribed for delayed or suppressed menstruation. That witness did not know what was the matter with her until October 17th, when Dr. Yett found her pregnant, and she was taken to San Antonio. That young men visited her, like they would any other young lady, and they would take her out to entertainments and other places. Mrs. W. H. Andrews identifies April 28, 1902, as the date when appellant stayed all night at their house, and relates that Bertha and Lottie went to a party on that evening; that Dollie was sick during the summer, and she did not know what was the matter until Dr. Yett examined her, and pronounced her pregnant, and she afterwards noticed that she was abnormally large about the abdomen. Dr. T. M. Yett testified that he visited Dollie professionally on June 7 or 8, 1902; also on July 10th, and three or four times between that and October 17th. She was feeling badly; was nervous, and so continued until October 17th; that he prescribed during that time for suppressed or delayed menstruation, and on October 17th made an examination, and found her pregnant, about five months advanced. "I don't think a woman 22 years old could be easily copulated with the first time. The hymen would obstruct the entrance of the male member, and her vagina would be smaller than if she had had experience in that line. Whether complete copulation could be effected or not would depend on the assistance of the woman and the position of her legs—were they laying out straight, the act of copulation would be very hard to effect. A woman 22 years old, who had never been copulated with, holding her legs out straight, and not assisting in the act, could hardly become pregnant from such act of copulation, for the reason that it is not probable the act of copulation would be complete. The hymen is a delicate membrane, partially covering the entrance to the vagina, and this is usually destroyed by the first act of copulation, being usually accompanied with pain and some hemorrhage." Dr. Haygood and Dr. W. D. Yett testified substantially as did Dr. T. M. Yett as to the act of copulation just quoted. Dr. Kinney testified that he delivered prosecutrix of a hermaphrodite child on January 22d, at San Antonio.

Flack & Dalrymple, Ike D. White, McLean & Spears, E. L. Anthony, and A. S. Fisher, for appel...