Tyler v. State

• Decision Date: 23 March 1904
• Citation: 79 S.W. 558
• Parties: TYLER v. STATE.
• Court: Texas Court of Criminal Appeals

79 S.W. 558

TYLER v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1904.

Appeal from District Court, Cherokee County; Tom C. Davis, Judge.

John Tyler was convicted of rape, and he appeals. Reversed.

B. B. Perkins, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of seven years; hence this appeal.

Appellant made a motion for continuance on account of the absence of several witnesses, for all of whom appellant appears to have used proper diligence. By the witness Emma Price appellant proposed to prove that she was with defendant's mother on the 7th of October, 1903; that they were on their way home in a wagon, and stopped at the home of Cora Mallard (prosecutrix); that defendant's mother wanted to borrow some salt, and appellant got out and went into the yard with Cora Mallard, and into the smokehouse, for the purpose of getting the salt; that the mother of defendant went after him, but returned without him; that a few minutes thereafter defendant and prosecutrix, Cora Mallard, returned and came to where they were; that prosecutrix said to defendant's mother: "Don't think anything strange by our staying so long, Mrs. Tyler; the salt was awful hard to get." To which defendant's mother replied, "You must have been doing something wrong, or else you would not be denying what you have never been accused of doing." Appellant did not deny the act of carnal intercourse with prosecutrix, but claimed he had her consent; and there were some very strong circumstances supporting this contention. On this branch of the case appellant's mother testified, and, among other things, she stated that after the parties remained at the smokehouse so long she went to hurry them up, and found prosecutrix and appellant in the smokehouse, and copulating. She returned to the wagon, and then the conversation between prosecutrix and herself, when the parties came back, occurred. If it be true that this act of intercourse took place, as testified to by appellant's mother, it would be a strong circumstance tending to show that the subsequent act of carnal intercourse, which is the basis of the prosecution in this case, took place with the consent of the prosecutrix. While the absent witness, Emma Price, does not corroborate appellant's mother in regard to the entire transaction, yet she does corroborate her as to a part thereof; that is, what occurred at the wagon on the return of the parties; and we believe, under the circumstances, appellant was entitled to this evidence. Especially so, when we look to the record before us in order to determine as to the sufficiency of the evidence to support this conviction. Here, according to the uncontroverted testimony, the prosecutrix, who was a married woman, went in a buggy with appellant (who was a married man living in the same neighborhood) to a festival at night, some five or six miles from prosecutrix's home. She testified that he asked her to copulate with him on the way back, about a mile from Clabe Henderson's, and she refused; that afterwards they stopped at Henderson's to get warm. This was about 3 o'clock at night. That after they left there, and had passed Price's about a quarter of a mile, and about one and a half miles from her home, he again asked her to have intercourse with him, and she declined. He then stopped the buggy and threw his legs on her lap, and said she might as well—that he was going to have it anyway. Whereupon she jumped out of the buggy, and he jumped out and caught her. She resisted and hallooed two or three times, and they wrestled around, he trying to throw her down, and telling her if she hallooed any more he would kill her, and that after resisting all she could he threw her down and had intercourse with her; that he was a great deal stronger than she. In confirmation of this, other witnesses testified that they went to the place in the morning, and saw the ground...