Tuberville v. State

• Decision Date: 31 December 1849
• Citation: 4 Tex. 128
• Parties: TUBERVILLE v. THE STATE.
• Court: Texas Supreme Court

4 Tex. 128

TUBERVILLE

v.THE STATE.

Supreme Court of Texas.

December Term, 1849.

Certain testimony held insufficient to authorize a verdict of guilty of incest.

An appeal lies from the refusal of the judge to grant a new trial in a criminal case.

Incest was not an offense punishable according to the common law, but according to the canon law.

Appeal from Walker. The appellant was indicted for the crime of incest with his own daughter, and found guilty. There was but one witness to support the charge. He testified that he overheard a conversation between the accused and his (accused's) wife, sometime in December, 1848, in which the accused said to his wife that she had stated that he had been with Sarah. She replied that she had said so, and asked him if he had not been with her He said he had. She asked him what made him do so, and also said to him, “Did you not know you would ruin yourself, her, and your family.” He replied he could not help it. This conversation took place at Huntsville, in the piazza of a public house, to which place the wife had brought the accused to make him give security to keep the peace. The witness further testified that the accused had, on the same day, denied to him that he had committed the offense with Sarah Tuberville; that there was great excitement against the accused; that his wife had sworn her life against him; and he could not get sureties; that he was anxious to reconcile his difficulties with his wife; and that it was whilst he was endeavoring to make such reconciliation that the witness heard the conversation above given. Witness heard nothing more about the charge; does not know in naming Sarah, Sarah Tuberville was meant. That there was a Sarah Smith that lived in the family of the accused, his wife's sister, and about thirty years of age. Sarah Tuberville was about fourteen years of age. Witness lived within a half mile of the accused; never heard anything about the charge before the conversation related. Accused had always been considered an honest, punctual, and an honorable man before this difficulty with his wife. The indictment was found at the Spring Term, 1849, at Huntsville.

The judge instructed the jury that if the offense charged was proved to have been committed within twelve months before the indictment was found, it would be sufficient. A motion for a new trial was overruled.

Sneed & Oldham, for appellant, argued that the testimony was wholly insufficient to sustain the verdict.

II. Incest is not a common-law offense. (Anderson v. The Commonwealth, 5 Rand. R., 627; 4 Black. Com., 64.) Until the 1st day of January, 1849, there was no statute in force in this State against the offense charged in the indictment. The court therefore erred in charging the jury (in spring of 1849) that it was sufficient if it was proved that the offense was committed within twelve months before the indictment was found.

LIPSCOMB, J.

The appellant was indicted for the crime of incest with his own daughter, and found guilty. He appealed to this court, and asks a reversal of the judgment--

1st. Because the court below erred in overruling his motion for a new trial.

2d. The court erred in the charge to the jury.

The charge contained in the indictment was so shocking to the moral sense of every civilized being, so degrading and humiliating to human nature, reducing man from his boastful superiority of a moral, rational being to a level with the brutal creation, that our pride and respect for our species would not allow us to believe it possible to have been committed in this age and country, unless constrained to yield conviction on the most indisputable proof. Is the proof in this case of that character? In considering the whole structure of the evidence of the witness, I must unhesitatingly say that it is not; that it does not afford the slightest legal proof that our country has been degraded by the commission of so loathsome, so heartsickening an offense in our midst. The language supposed to have been evidence of the offense by no rule of construction known either to the jurist or to the common-cense use of words could sustain the charge. First, the improbability that this witness heard enough to disclose truly the subject of the conversation. If it related to the cause of the difficulty between the accused and his wife, it may have referred to a different charge. It might have referred to efforts on the part of the accused to prejudice his daughter against her mother and induce her to believe that the mother, and not the father, was to blame in the difficulty that had disturbed the harmony of the family. A single word not heard by the witness might materially have changed what he understood to be the purport of what he had heard. Suppose it had been, “You have stated that I have been talking with Sarah.” The witness not hearing the word “talking,” it would then have fallen on his ears as “I have been with Sarah,” when in truth the conversation may have related to talking with Sarah. Again, if witness heard the words in proper connection, they may have referred to another person of whom the wife may have been jealous, and may have supposed that with such person the husband had been guilty of acts of infidelity to his marital obligations. It may, and probably did, refer to another Sarah. It is, however, useless to speculate on what was meant by the words testified to as passing between the husband and wife. Whether taken in mitiori sensu or in their ordinary acceptation as used in common parlance, they never could convey an imputation of the offense charged.

It is said, however, that although there may not have been any legal evidence to sustain the verdict of the jury, yet an appeal will not be entertained in this court from such a refusal to grant a new trial, for the want of jurisdiction. Whether the decision of a judge on a motion for a new trial can be revised in an appellate court or not is a question that has been variously decided. In some States it is considered as entirely addressed to the discretion of the judge, and that it is not competent for an appellate court to revise his decision, whether that discretion has been wisely exercised or not. Such is the rule in the Supreme Court of the United States, the same in the State of Alabama. It was so ruled in the last State, not long after the organization of the Supreme Court, in a criminal case; but its application has been to all cases, civil and criminal. The opinion of the court was expressly placed on the authority of the Supreme Court of the United States. (Phleming v. The State, Minor R., 43.) See Spence v. Tuggle, (10 Ala. R., 538,) by which it will be seen that the same doctrine is still held in the Supreme Court of that State. In Virginia a different rule prevails, sustained by a long train of decisions, from Washington's Reports down to the present time. The same doctrine is found to prevail in Tennessee--and the decisions of the court of original jurisdiction have been again and again revised--and is not questioned. (Keller v. Bevans, Cook R., 89; Rayburn, Adm'r Harbour, 7 Yerg. R., 432; Pawley v. McGimpsey, Id., 502; Hawkins v. Carrol, Id., 505.) Same rule prevails in Kentucky. (Bagby v. Lewis, 2 Mon. R., 77, 78.) It will be seen that in New York a motion for a new trial is made in the Supreme Court; and it is there decided on a view of the evidence. They were decided in King's Bench by a reference to the evidence at nisi prius.

In South Carolina it is the constant practice of the appellate court to decide a motion for a new trial on an examination of the evidence; and it is a matter of right to ask a revision of the testimony on which the jury found the verdict. In this country it has been the uniform practice of the Supreme Court, from its organization after the Revolution, to revise the testimony on which the verdict was found, and for a long time to do so whether a motion for a new trial had been made in the court below or not. This was modified; and the court now refuse to do so unless a motion was made in the court a quo and overruled. (Foster & Foster v. Smith, 1 Tex. R., 70.)

I have so far discussed the doctrine on the subject of revising a decision of the judge in refusing to grant a new...