Travelstead v. State

• Decision Date: 09 June 1926
• Docket Number: (No. 9992.)
• Citation: 287 S.W. 53
• Parties: TRAVELSTEAD v. STATE.
• Court: Texas Court of Criminal Appeals

287 S.W. 53

TRAVELSTEAD v. STATE.

(No. 9992.)

Court of Criminal Appeals of Texas.

June 9, 1926.

Rehearing Denied October 20, 1926.

Appeal from District Court, Wheeler County; W. R. Ewing, Judge.

Ray Travelstead was convicted of rape, and he appeals. Affirmed.

M. Reynolds, of Shamrock, and C. C. Small, of Wellington, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

LATTIMORE, J.

Conviction in district court of Wheeler county of rape; punishment fixed at five years in the penitentiary.

The testimony shows that appellant and one Waldo took two young women out in a Ford roadster on the occasion in question. The testimony shows that appellant and his companion acted together in their efforts to have carnal intercourse with the two girls, and is replete with facts and circumstances showing that said companion aided and encouraged appellant in his assault on prosecutrix herein. Both girls swore that the men tried to get them to drink whisky before the assault. At once upon reaching home prosecutrix reported the assault to her mother, who examined her and found her condition such as to corroborate the report made. The occurrence was Friday night, and on the Monday following the young woman was examined by a doctor, who said he found lasceration and "considerable congestion and irritation of the vaginal tract, and there was a somewhat swollen condition." He also said that he examined the girl's private parts with a speculum and discovered that there was a secretion about the mouth of the womb which was streaked with blood and mucous.

Bill of exceptions No. 5 sets out a half page of the testimony of the young woman who accompanied prosecutrix, who swore to the various acts and conduct of appellant and his companion, among other things, efforts to induce her and prosecutrix to drink some whisky. We apprehend the objection to this testimony is to "any transaction as to any whisky" on the ground that it was a separate and distinct offense. Facts showing, the commission of a crime other than the one directly charged, if part of the res gestæ and aiding in the development of the transaction, are admissible. Tucker v. State, 94 Tex. Cr. R. 119, 249 S. W. 1063; De La O v. State, 94 Tex. Cr. R. 205, 250 S. W. 182; Enfield v. State, 94 Tex. Cr. R. 226, 250 S. W. 162; and authorities collated in Branch's Annotated P. C. § 166.

We are not in accord with the complaint set out in bill of exceptions No. 10 urging that the court abused its discretion in regard to allowing the district attorney to cross-examine appellant as to his past criminal career, and to ask him if he had not been charged with felonies in various states. Appellant under such cross-examination finally admitted that he had been charged with...