Turner v. State

• Decision Date: 28 January 1914
• Parties: TURNER v. STATE.
• Court: Texas Court of Criminal Appeals

163 S.W. 705

TURNER v. STATE.

Court of Criminal Appeals of Texas.

January 28, 1914.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

Frank Turner was convicted of rape, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of rape, and his punishment assessed at five years' confinement in the penitentiary.

Gusta Poe, a ten-year old girl, testified to facts showing that she had been raped by appellant, detailing all the circumstances. On cross-examination the appellant sought to show by this witness that her father was trying to make appellant leave the country, and all through the record an effort is made by appellant to show that the prosecution is a frame-up, instigated by the girl's father to get appellant off his land and out of the country. The state at this time had not offered nor attempted to show that appellant had made any confession, but on cross-examination of this witness the defendant elicited the following facts: That she had told her father about the matter, when her father went in the direction of where appellant was staying, and then, to use her own language: "The next time I saw Papa was late that evening, and Mr. Turner was with Papa at that time. Papa then told me to tell it right before Mr. Turner and Mamma, and I did. My papa and mamma and Mr. Turner and I were all there. I told them just what I have told here. Mr. Turner looked pretty bad that night. He was pretty badly beaten up. My papa hit him while I was there near him. Papa would just hit him and say, `Now, don't you see?' Papa did that when I told him what I did there after Mr. Turner was present. Mr. Turner was bleeding a good deal at that time. Bleeding in the face and blood all over his face and eyes. My papa did not tell me that he was beating the old man up, but I saw Papa hit him. Mr. Turner never said anything, only Papa asked him if it was the truth, and Mr. Turner would not say anything, and Mamma says, `Say yes,' and he said `Yes.' Papa was `laying' it onto him then. He was hitting him about that time. Turner begged Mamma to get Papa to quit beating him. My mamma did not try to get Papa to quit beating the old man. Mr. Turner said that Papa was going to kill him. Mamma did not try to get Papa to quit beating him up. Papa said he was going to kill the old man, and Mamma said she did not care if he did, and Papa picked up a stick and commenced beating him and beat him a good while before the old man acknowledged to doing what I said he did. Mamma then took the stick away from Papa and throwed it away. Papa beat him a good while before he owned up to it. He would not say `Yes' at first. Turner did not say that he would confess to anything if Papa would not kill him. He said Papa was going to kill him, and that is all he said then. I then left my papa there in the road. Mamma and I went on, and Mr. Turner and Papa went back towards the bridge. Papa was not leading Turner and pushing him along as they went down towards the bridge." This was the first witness placed on the stand, and none of this testimony was offered by the state, but elicited by defendant on cross-examination, and defendant was the one who injected this matter into the case. From the record it would appear he deliberately did so for the purpose of supporting his contention that the father of the girl was trying to force him off the land and make him leave the country, and that the charge of rape had been instigated by Gusta Poe's father for the purpose of giving him an opportunity of beating him up and driving him out of the country, and the case was tried in fact on that issue as made by defendant. Under such circumstances we do not think there was any error in permitting Mr. and Mrs. Poe to testify in regard to what was said and done on that occasion.

Appellant objected to Mr. and Mrs. Poe and Edgar Holt testifying that appellant on that occasion admitted he committed the rape on the little girl, on the ground that he was under duress, and it was not voluntarily made. It is not contended he was under arrest, but that it was forced from him, and the confession was made to save his life. There would be strength and force in appellant's contention if he had not been the first, in the cross-examination of Gusta Poe, to inject this matter into the case, but, when he had elicited the matter from her to build a theory on, that the charge was a frame-up of the father to give him an opportunity to beat him and drive him out of the country, then the transaction just as it occurred might be detailed by the other witnesses.

Appellant escaped that night, and it is shown he fled the county and was arrested in Waco, and when arrested he gave an assumed name. George Weathers, of the police force, testified: "I went to search for him (meaning defendant). I found the old man in the Cotton Belt bar on the corner of Third and Mary streets. I had a description of the old man, and I walked in by the bar and saw this man, and I called him out by the side of the house and asked him where he lived, and he said at Waco, and I asked him how long he had been living in Waco, and he said 25 years; and I says, `What part of Waco?' and he said, `Just anywhere;' and I says, `What do you do for a living?' and he says, `I work;' and I says, `Who do you work for?' and he said, `I work out in the edge of the country and town;' and I says, `What is the man's name that you worked for?' and he studied a little while and says, `I can't think of his name.'" The witness then said he had not yet arrested the defendant, but testified further as follows: "At the time I took him (meaning the defendant) out there I would not have let the defendant get away, if I could have helped it. That is what I had him for. And he says, `My name is not Turner.' He had previously told me his name was John or Will Johnson, or something like that." In approving the bill the court s...