Webb v. State

• Decision Date: 14 June 1916
• Docket Number: (No. 4096.)
• Parties: WEBB v. STATE.
• Court: Texas Court of Criminal Appeals

187 S.W. 485

WEBB v. STATE.

(No. 4096.)

Court of Criminal Appeals of Texas.

June 14, 1916.

Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.

Louis Webb was convicted of assault to rape, and he appeals. Reversed.

Scott & Brelsford, of Eastland, and W. P. Mahaffey, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

This is an appeal from a conviction for an assault to rape a girl under 15 years of age. We will not state fully nor discuss the testimony, in view of the fact that the case must be reversed. Neither will it be necessary to discuss the several bills of exceptions as to the introduction of testimony and other matters. Some of these bills are extremely lengthy. Nearly all are explained and qualified by the judge. However what we say will embrace all the matters raised, so as to be a guide for another trial.

In trials for this character of offense, other acts upon her than the one upon which the prosecution is based, occurring along about the same time, are admissible, under the case of Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, and that line of decisions following it. Therefore the testimony of the assaulted girl, wherein she testified to an assault upon her at a gin and also in the pasture, were admissible.

It was shown that the families of both appellant and the alleged assaulted girl, Thelma Parish, lived in the same town just across the street from one another, both families having children, girls and boys, and that the families had for years been intimate and frequent visitors, one to the other. Appellant claimed that after the alleged repeated assaults upon Thelma, and notice thereof to her mother and other members of her family, the social relationship between the respective families, including the father and mother and all the children of each, continued somewhat the same as before said claimed assaults. We think such testimony was admissible to enable the jury to determine whether or not the alleged assault had occurred, and it was improper for the court to limit the jury to the consideration of such testimony solely for the purpose of impeaching the mother or other members of the family of Thelma. Of course, if some particular portion of such testimony amounted only to a specific impeachment of some given fact, by other witnesses, then it would be proper in those particulars for the court to restrict such testimony for impeachment alone; but otherwise it would be improper to restrict such consideration for that purpose. It could be considered by the jury to determine the credibility and weight to be given to the respective witnesses, and would be embraced under that general charge of the court, that the jury are the judges of the credibility of the witnesses, etc., and should not be otherwise restricted, as stated.

The rule in this state is well established that ordinarily other offenses, or offenses of a like nature, cannot be introduced in evidence against an accused unless in certain contingencies. Among them is the question of the intent of the accused, in which instance an exception to the rule is as well established as the rule itself, to the effect that when intent is an element of the offense, and the testimony of an accused, or other testimony, should tend to show that an act otherwise illegal was committed without any intent to commit the offense charged, then such other like acts can be proven for the purpose of showing the intent of accused.

Appellant did not testify. It is unnecessary for us to determine now whether or not the question of what the girl testified he did was with an innocent intention or...