Turman v. State

• Decision Date: 02 May 1906
• Citation: 95 S.W. 533
• Parties: TURMAN v. STATE.
• Court: Texas Court of Criminal Appeals

95 S.W. 533

TURMAN v. STATE.

Court of Criminal Appeals of Texas.

May 2, 1906.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Ernest Turman was convicted of an assault with intent to commit rape, and he appeals. Reversed.

Mounts & Jones, for appellant. M. D. Carlock, and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of an assault with intent to commit rape, and his punishment assessed at 25 years confinement in the penitentiary; hence this appeal.

The state's case is to the effect that prosecutrix, between 12 and 1 o'clock on the 25th of December, 1905, left her brother's (Lee Blaylock's) who lived some 400 yards from her father's (W. R. Blaylock's), to go to the latter's house, where she had been living before she married (which was several weeks before the alleged rape), to change her dress; that while she was there alone, and while changing her dress, some one seized her by the waist, and, when she turned, the person whom she recognized as appellant had a butcher knife, which belonged on the place, raised as if to strike. She screamed and jerked loose from appellant, tearing her corset cover, which appellant had hold of, and ran from the house; not seeing appellant afterwards. She ran screaming towards her brother's, and on the way met her mother and Mrs. Perrin, about halfway between the two houses. The alarm was given, and appellant was arrested that night or the next day, and prosecutrix identified him as the party assaulting her. Appellant's theory was an alibi. This is a sufficient statement of the case to discuss the assignments of error.

There is nothing in appellant's motion to quash the indictment.

After the case had gone to trial, appellant filed a motion to postpone or continue the case on account of the absence of Jim Turman and Bethena Turman. This was contested on the part of the state. Bethena Turman was subpœnaed, and it is alleged she was sick and unable to attend at the time of the trial. Jim Turman was not subpœnaed. During the excitement he had been notified to leave, and could not be found in the county. By both of said witnesses it was alleged that appellant expected to prove certain facts tending to show an alibi; that is, that he was at the place where Bethena Turman was some time before the alleged assault to rape, and that he was at Jim Turman's some time after the alleged assault. By neither of said witnesses does it appear that he proposed to prove his whereabouts at the time the alleged assault was committed; and the facts show that he was near enough at either place, as alleged said witnesses would prove, to the place of the alleged assault, as to have been present at the time and place when it was stated they would testify. So, conceding the diligence, it does not occur to us that the testimony of said witnesses was material. Nor does it occur to us that the testimony of either of said witnesses was material as to what they would testify regarding the clothing of appellant. It is not stated what opportunity witnesses had of knowing the character of clothing owned by appellant, and the statement in general terms that he did not have such clothes as described by prosecutrix is not sufficient, without showing the facts suggesting knowledge on the part of the witnesses as to how they came to know the clothing owned by appellant. The same observations may be made with reference to his hat or cap. Appellant had ample time, after Bethena Turman should have seen him, before dinner, to have changed his hat and clothing, and to have had on the clothes described by prosecutrix at the time the offense is alleged to have been committed. He also had time to change said clothing after the commission of said offense before he is alleged to have appeared at Jim Turman's house. We do not think the application shows the testimony to have been material.

There was also an application made during the progress of the trial for the postponement of the case to procure the testimony of one Thompson. It is stated that said Thompson's testimony was newly discovered, and that he would swear he met a person wearing clothes somewhat similar to those described by the prosecutrix at the time of the alleged occurrence, about two miles therefrom, going in the direction that might have led to the house of W. R. Blaylock. No further proximity is shown as to this party to the scene of the alleged assault than two miles therefrom; and the mere fact that Thompson saw a party who had clothing on somewhat similar to those proved by prosecutrix to have been worn by the alleged assaulting party would not have constituted material testimony. Before testimony that some person other than defendant may have committed the offense can be introduced, there must be some pertinent evidence showing that such other person was in such proximity to the offense as would make it reasonably probable that he might have been guilty of the same.

It was not error on the part of the court to have permitted W. R. Blaylock, while testifying on behalf of the state, to state that his house was closed when he left it that morning to go to Lee Blaylock's to eat dinner. The fact that testimony of this character might suggest that appellant in entering said house had committed burglary would not render this character of testimony inadmissible.

When Mrs. Willie Bateman (prosecutrix) was testifying in behalf of the state, she was asked: "Just before your mother reached you, after you had run away from your father's house, what happened to you?" To which she replied: "Just before my mother and Mrs. Perrin reached me I fainted, and became unconscious. The next thing I remember my mother was standing over me." Defendant objected, because immaterial, irrelevant, and defendant ought not to be bound by the acts of Mrs. Bateman, not occurring in his presence, and that the act of fainting and becoming unconscious was a matter defendant could not be bound by, and would have a tendency to prejudice his rights; that the act of fainting of prosecutrix was foreign to the issues in this case, and tended to inflame the minds of the jury. The court explains the admission of this testimony by the following statement: "The testimony was res gestæ; and, further, the state was compelled to show the condition of Mrs. Bateman after the assault and up to the time she made the statement to her mother (Mrs. Blaylock), in order to show that statement admissible as res gestæ." We think this statement of the court disposes of this matter. Unquestionably, if some one had come to the house and found prosecutrix there in an unconscious condition, this could have been proven. We think it was equally competent to show that she ran from the house immediately on extricating herself from her assailant, screaming, and, when she had run about 200 yards therefrom, fainted. As explained by the court, this was a part of the res gestæ of the alleged offense. It could have been but a very short time before this occurred that the alleged assault was committed, and evidently her then condition was attributable to the assault.

While this same witness was on the stand she was asked: "As soon as you had told the officers that defendant was the man who assaulted you, and they had started out of the room with the defendant, what happened to you?" To which she answered: "As soon as I identified the negro man who assaulted me, and they started out of the room with him, I fainted." Appellant objected to this testimony for the following reasons: Because immaterial and irrelevant; did not prove or explain any issue; that defendant could not be bound by any of the acts of Mrs. Bateman fainting; could only tend to prejudice defendant's rights by inflaming the minds of the jury against him—which objections were overruled. The court qualifies this bill as follows: "That on cross-examination defense asked witness if Mrs. Bateman made any reply when the sheriff asked her...