Tinker v. State

• Decision Date: 31 January 1923
• Docket Number: (No. 7269.)
• Citation: 253 S.W. 531
• Parties: TINKER v. STATE.
• Court: Texas Court of Criminal Appeals

253 S.W. 531

TINKER v. STATE.

(No. 7269.)

Court of Criminal Appeals of Texas.

January 31, 1923.

On Rehearing, June 27, 1923.

Appeal from District Court, Cass County; Hugh Carney, Judge.

Ennis Tinker was convicted of statutory rape, and appeals. Reversed and remanded.

C. R. Newland, of Linden, and I. N. Williams, of Mt. Pleasant, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Cass county of the offense of rape, and his punishment fixed at confinement in the penitentiary for a period of 20 years.

The record herein shows without dispute that appellant and one Adams went with two little girls from Mt. Pleasant, in Cass county, Tex., in a car to Texarkana, Tex. They left Mt. Pleasant late one afternoon. Some time in the night they reached Atlanta, in Cass county, and went to a hotel and spent the night. Appellant registered the party as "Adams, son and daughters." They called for a room with two beds, into which the entire party went, and remained till morning. Appellant contends that he and Adams slept in one bed and that the two girls occupied the other. He is charged with rape upon the younger of said girls, who, according to the state's theory, was at that time but 12 years of age. She testified that she and her sister were under the influence of liquor given them by appellant and Adams and that she went to bed with appellant, having on both her outer and underclothes. She said she was wakened by his hugging her up during the night, and that thereafter he had two acts of intercourse with her before morning. She said that when he woke her she discovered that he had removed her drawers. She further testified that when she got up in the morning she bathed her private parts, and there was blood and other matter upon her limbs. The other sister testified that she saw the alleged injured girl bathing her private parts the next morning, and saw blood on her limbs. The landlady of the hotel testified that she found in the room the next morning after the party had gone the drawers of a young girl. Physicians who examined the girls at Texarkana testified that they found the private parts of the alleged injured girl much enlarged, and that indications pointed to the fact that she was both capable of indulging in sexual intercourse with a man and that she had been penetrated at some time in the past, though said private parts did not indicate recent violent penetration.

Appellant moved to quash the indictment upon the ground that it charged carnal knowledge of a female under the age of 15 years, and that the age of consent as it now is, is 18 years. This question has been decided against appellant's contention. Young v. State, 89 Tex. Cr. R. 230, 230 S. W. 414.

Appellant also moved to quash the indictment upon the ground that persons not authorized by law were present with the grand jury when it was deliberating upon the finding of the instant indictment. It was shown and admitted that because of the timidity and youth of the alleged injured female she was accompanied into the grand jury room by the sheriff of the county in which she lived, who was present while she was being questioned. It was also shown without contradiction that no one was present with the grand jury when they were deliberating upon the question of the finding of the indictment herein. This court has held, in regard to the presence of persons acting in various capacities during the investigation of crime, that such presence, extending no further than while testimony was being had before the grand jury, would not come within the forbiddance of such presence while the said grand jury was deliberating upon the finding of the indictment. McElroy v. State, 49 Tex. Cr. R. 604, 95 S. W. 539; Moody v. State, 57 Tex. Cr. R. 76, 121 S. W. 1117; Porter v. State, 72 Tex. Cr. R. 71, 160 S. W. 1194. See other cases cited in Branch's Ann. P. C. § 486. Inasmuch as the presence of any person other than the grand jurors at the time said body was deliberating upon the return of the indictment herein is negatived by the facts shown, the contention is without merit.

Appellant moved for a severance and that Adams be first placed upon trial. Adams was indicted for rape upon the sister of the alleged injured female herein. We do not deem this to bring the case within the comprehension of our statutes in regard to severance. It is provided by article 726, C. C. P., that, when two or more defendants are jointly prosecuted, they may sever; it is also provided by article 727, Id., that, where two or more defendants are prosecuted for an offense growing out of the same transaction, either may file his affidavit that the evidence of the other party or parties is material for his defense, etc., and the person whose evidence is thus desired may first be tried. It seems to be held that by the use of the term "transaction" in the statute above referred to is meant that the parties must be indicted for the same offense. Ray v. State, 43 Tex. Cr. R. 234, 64 S. W. 1057. The subject has recently been discussed by this court in Cotton v. State (No. 6503) 244 S. W. 1027, opinion delivered November 15, 1922, which holds adversely to appellant's contention. It would seem beyond question that, appellant being charged with rape upon Maggie Ray and Adams with rape upon Neoma Ray, said parties were not charged with the same offense.

It is urged that the court should have granted a motion made by appellant to compel the state's attorney to furnish to the defendant all written statements made by any witness in the case which might then be in possession of said attorney, as well as a list of all the witnesses expected to be used by the state. The written statements were not before the jury, and we are of opinion that the refusal of such motion presents no error.

It is also urged that the witness Neoma Ray was shown by the preliminary examination to be incompetent. Said witness stated as follows upon said preliminary questioning:

"I understand what I am doing now; I am just swearing against old man Adams, is all I know, and that means that I am going to tell the truth. I know the difference between a story and the truth. I can tell a story and help him out, and tell the truth and it won't. I know which is right and which is wrong. It is right to tell the truth."

This witness was shown to be about 13 years old at the time of the trial, and we deem it no abuse of the discretion confided in the trial court to hold her competent as a witness.

It is shown by a bill of exceptions that while Neoma Ray was testifying the attorney for appellant interposed an objection, in response to which, and before the court ruled, the state's attorney remarked: "All right; if he thinks it is damaging I will not insist." Appellant's objection to this seems to be based upon the proposition that said remark was in a sneering and suggestive way, but the qualification of the trial court consists of a statement that the manner of the state's attorney was not as stated in said bill. We do not perceive any error in the matter set out in said bill as so qualified.

Upon the trial of the case the rule was invoked. Said trial extended over some days. The witness Neoma Ray was called back to the witness stand after having testified in chief, and when so recalled gave in testimony the fact that at Atlanta, on the morning after the night spent in the room with said two men, she saw her sister, Maggie, the alleged injured party in the instant case, wash blood from her legs and private parts. Cross-examining this witness, appellant's counsel developed the fact that during the trial the district attorney, accompanied by the sheriff, came to the jail where witness and her sister, Maggie, were staying during the trial, and talked to them about their testimony, said conversation being had with both girls at the same time. The qualification of the trial court to this bill of exceptions contained the statement that it is his custom to allow the district attorney to talk to witnesses under the rule in the presence of the sheriff, and that, this being done, the trial court was of opinion that no such serious violation of the rule was shown as would justify him in rejecting the testimony of said witness. These matters are largely confided to the discretion of trial courts; but unless upon complaint thereof it is made to appear evident to us that there is no likelihood of injury to him arising from an abuse of such discretion, this court would not feel inclined to direct a reversal based upon such contention. We do not believe appellant brings himself within this rule. What we have just said also applies to the appellant's further objection to testimony from the witness Maggie Ray, who was introduced by the state, and testified over an objection made by appellant based on the fact that she had discussed the case with the district attorney in jail in the presence of Neoma Ray.

There is a further objection to testimony of the fact that after leaving Mt. Pleasant with said two children the two men involved in the transaction obtained whisky which they put in the car and carried with them. The fact that the development of a given transaction relied upon by the state as constituting a crime brings out other facts which of themselves constitute an independent crime does not per se make the evidence of such independent crime inadmissible. The state relied upon the proposition that these two men started out together to debauch these children, and that as a part of and in furtherance of said purpose they procured and gave to said children intoxicating liquor. The fact that the transporting of such liquor would constitute an independent crime would not seem to make it inadmissible in the development of the case against appellant for rape.

We deem it competent for the state to ask appellant while on the witness stand testifying in his own behalf if he was...