Westerman v. State

• Decision Date: 19 February 1908
• Citation: 111 S.W. 655
• Parties: WESTERMAN v. STATE.
• Court: Texas Court of Criminal Appeals

111 S.W. 655

WESTERMAN v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1908.

Rehearing Denied June 24, 1908.

Appeal from District Court, Eastland County; J. H. Calhoun, Judge.

Ben Westerman was convicted of aggravated assault, and he appeals. Affirmed.

Stubblefield & Patterson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $500 and two years in the county jail.

Appellant filed a motion to quash the indictment. The charging part of the indictment is as follows: "Did then and there unlawfully make an assault, with the intent then and there to commit rape in and upon Lonie Hutton, a woman, by then and there attempting, by force, threats, and fraud, to ravish and have carnal knowledge of the said Lonie Hutton, without her consent; the said Lonie Hutton then and there not being the wife of him, the said Ben Westerman." Appellant relies upon the Franklin Case, 34 Tex. Cr. R. 209, 29 S. W. 1088, and the Payne Case, 38 Tex. Cr. R. 494, 43 S. W. 515, 70 Am. St. Rep. 757, as authority for his motion. The indictment here does allege that the prosecutrix is not the wife of appellant. In those two cases the indictment did not so allege. The cases are not in point, and we hold the indictment is sufficient.

Appellant insists that the court erred in refusing to grant him a continuance for the want of the testimony of defendant's wife and one Blackburn; that he expected to prove by his wife that prosecutrix stayed at the home of appellant with her husband some days after the alleged assault; that his wife discovered nothing unusual in the manner of prosecutrix; and that he wanted the testimony of Blackburn to prove by him that the object of Emmett Hutton (husband of prosecuting witness) in having him prosecuted was to collect a debt from appellant. The record before us shows that the prosecutrix's husband was not placed upon the stand in the trial, and this testimony would be entirely immaterial. Furthermore, the prosecutrix herself testified in the trial that she and her husband were living at the home of appellant at the time of the assault, and she continued to stay there a week afterwards, without making any disclosure of the defendant's conduct towards her while she so remained. Therefore the testimony of appellant's wife would not be material, because no fact was proposed to be proved by her, other than that admitted by the...