Wharton v. State, 25826

• Decision Date: 14 May 1952
• Docket Number: No. 25826,25826
• Citation: 248 S.W.2d 739,157 Tex.Crim. 326
• Parties: WHARTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 739

248 S.W.2d 739

157 Tex.Crim. 326

WHARTON v. STATE.

No. 25826.

Court of Criminal Appeals of Texas.

May 14, 1952.

John Cutler, T. M. Britton, Jr., Houston, C. S. Farmer, Waco, for appellant.

Sam W. Davis, Crim. Dist. Atty., King C. Haynie, Asst. Crim. Dist. Atty., Houston, George P. Blackburn, State's Atty., Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction for rape with a sentence of twenty years in the penitentiary.

Strong argument is made for reversal of this case on the ground of insufficiency of the evidence. Appellant testified in his own behalf and admitted some of the surrounding circumstances testified to by the prosecuting witness, including the fact of his visit to the home and the act of sexual intercourse. He contends, however, that it took place after her apparent consent and without any resistance on her part. He denied making any threats or using any force whatever.

The evidence of the prosecuting witness in this respect is not very impressive. She admitted that he used no physical force, that her clothing were not torn, and that the chief threat was that he might hurt her. She said he put his hand over her mouth and kept her from hollering and held her down; that he told her she should remember her children, which she apparently interpreted as a threat to injure either her or the children. However, we are not in position to say that the evidence was insufficient to support a jury's verdict when presented to them under legal procedure.

Appellant produced a number of character witnesses who testified as to his good reputation. On cross-examination the district attorney, over appellant's objection, was permitted to ask each witness questions which form the basis of complaint in several bills. These will be discussed as one. Travis Hughes, testifying as a character witness, was asked on cross-examination: 'YOU SAY YOU DO KNOW HE IS UNDER INDICTMENT NOw?' objection was sustained to this question and the jury was instructed not to consider it.

Earl Callahan, a character witness, was asked on cross-examination: 'Have you heard that he is under another indictment for rape in a separate case on a separate woman that occurred eight days after this one?' (Emphasis added.) Objection to this question was overruled.

To Eddie Smith a similar question was directed with the explanation '* * * that happened eight days after this one he is being tried for.'

To the witness Moody Levy, a similar question was asked with the statement '* * * that happened eight days after this one he is being tried for.' While Mrs. Bonnie Smith, a character witness, was testifying a similar question was asked with the identifying statement: '* * * that happened eight days after this one he is being tried for.' Objection to each of these was overruled and the witness answered, in one case, that he had read about it in the paper; in another, that she had not heard all the details.

The question involved in these bills has been before the court from the beginning of its history. It appears still, from the way the question is handled occasionally, that a great many attorneys, both for the prosecution and defense, have never understood the approved method of examining a character witness as to his qualifications to testify in such matters. Sometimes there seems to be an utter lack of understanding of the difference between 'character' ...