Taylor v. State

• Decision Date: 04 December 1886
• Citation: 3 S.W. 753
• Parties: TAYLOR <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 753

TAYLORv.

STATE.¹

Court of Appeals of Texas.

December 4, 1886.

Appeal from district court, Clay county.

The indictment in this case charged the appellant with the rape of Jane Taylor, who is shown by the evidence to be his own daughter, in Clay county, Texas, on the twenty-seventh day of December, 1885. His trial resulted in

his conviction of assault with intent to rape, and he was awarded a term of seven years in the penitentiary.

The statement of facts in this case is voluminous. Its substance, however, can be sufficiently stated in a few words. This conviction rests almost solely upon the testimony of Jane Taylor, the alleged victim of the outrage. She is shown throughout to have been a most reluctant and unwilling witness. In the first place, it is shown that, after having filed the complaint against her father, she sought legal advice as to whether she could be compelled to testify. Advised that she could decline to testify to any facts which would tend to involve her in a criminal charge, she declined to testify on the examining trial, and did not do so until she had been committed to and confined in jail for 48 hours. The evidence strongly intimates attempts on her part to get transportation out of the country, to avoid testifying on this trial. The substance of her testimony, elicited by close questioning, was to the effect that her father came to her room on the night alleged in the indictment, having a pistol in his hand. He first threatened to kill her if she made outcry or other noise. He then struck her with the pistol, forced her to assume an unnatural attitude on the bed, and then gratified his passion upon her person, — all of which he did against her will and consent. The witness then testified that defendant had subjected her person to his carnal passion as often, at least, as six times before the act charged in the indictment. She stated that she always complied through fear. With reference to one particular act, she stated that just before she retired, and while her mother and brothers were yet in an adjoining room, her father came to her room, and directed her to meet him at a later hour behind a haystack, which she did, going to him in her night clothes. The defense proved that Jane Taylor, on the examining trial, denied that the defendant ever had carnal knowledge of her person. The reputation of Jane Taylor for truth and veracity was shown by several witnesses to be bad, and the general reputation of the defendant, except that he gambled occasionally, to be good.

Plemons, Hazlewood & Templeton and E. J. Hamner, for appellant, insisted that the trial court erred in permitting the state's attorneys to instruct the witness, Jane Taylor, as to the nature and obligation of an oath, after she had disqualified herself on her voir dire, and in then holding her competent, and that the court erred in permitting the said witness to testify to other acts of outrage than that charged in the indictment.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

This appeal is from a judgment of conviction for assault with intent to commit rape, the punishment being seven years in the penitentiary. The injured party was the daughter of appellant, and the conviction rests almost exclusively upon her uncorroborated testimony. According to her statements as a witness, appellant had ravished her first some five years prior to the date of the crime for which he was being tried, and she deposed that his crime had been repeatedly perpetrated upon her in the interval between the first and last offense. After the testimony at the trial was closed, the defense demanded that the prosecution be required to elect the precise and specific offense for which a conviction would be claimed, and the prosecution announced that they would claim a conviction only upon the offense as laid in the indictment, to-wit, the one committed on or about the twenty-seventh of December, 1885.

Before her examination as a witness, defendant requested the court to have the prosecutrix tested upon her voir dire as to her competency with regard to the nature and obligations of an oath. This was granted, the witness examined in open court, and pronounced incompetent by the judge. Thereupon, at the request of the prosecuting attorneys, and over objection of defendant, the said prosecuting attorneys were permitted to take said witness from the court-room to the private law office of one of said attorneys, that they might there instruct her properly, in the presence of the sheriff, with regard to the nature of an oath, and read and explain to her the statutes with regard to the crime of perjury, and its punishment; after which the witness was again brought back into court, re-examined as to her competency, and pronounced competent by the judge, and she then testified in the case, — all of which was excepted to by defendant.

Our statutes, while they declare that no person shall be disqualified from giving evidence on account of his religious opinions, or for want of any religious belief, (Bill of Rights, § 5; Code Crim. Proc. art. 12,) do hold as incompetent "children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligations of an oath." Code Crim. Proc. art. 730, subd. 2. The method of testing the competency of such witnesses is confided to the discretion of the trial judge, and his determination of the question will not ordinarily be disturbed on appeal, unless an abuse of that discretion is apparent. Brown v. State, 2 Tex. App. 115; Ake v. State, 6 Tex. App. 398; Brown v. State, Id. 286; Williams v. State, 12 Tex. App. 127; Burk v. State, 8 Tex. App. 336.

Was the mode adopted in this instance an abuse of discretion? Mr. Wharton says: "When a child is incompetent simply for want of instruction as to the nature of an oath, the practice has been to postpone the case, so that the child might in the meanwhile be properly instructed." Whart. Crim. Ev. (8th Ed.) § 368; citing Rex v. White, 1 Leach, 430. This was the English practice. As far as known, it has never been adopted in this country. On the contrary, as Judge LEWIS says in State v. Scanlan, 58 Mo. 206, such "practice has been criticised as like preparing or getting up a witness for a particular purpose." S. C. 1 Amer. Crim. Rep. (Hawley,) 185. In Indiana, where the witness on a trial for rape was a child only six years old at the time of the trial, and was testifying sixteen months after the alleged offense, the competency of the witness having been challenged, the court examined her, and, not being satisfied, appointed two gentlemen, who retired with the child to a private room, and, after some time, returned and reported to the court that, in their opinion, her testimony ought to be heard, but received with...