Whitehead v. State

• Decision Date: 15 March 1911
• Citation: 137 S.W. 356
• Parties: WHITEHEAD v. STATE.
• Court: Texas Court of Criminal Appeals

137 S.W. 356

WHITEHEAD v. STATE.

Court of Criminal Appeals of Texas.

March 15, 1911.

Rehearing Denied April 19, 1911.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Hugh Whitehead was convicted of rape on a girl less than 14 years of age, and appeals. Affirmed.

The evidence of the prosecutrix and defendant was as follows:

Testimony of the Prosecutrix.

Lottie Whitehead, a witness called on behalf of the state, being duly sworn, examined in chief by Mr. Wilson, testified as follows:

"I was born in Hill county, Tex.; have lived in Johnson county, Tex., nine or ten years. We live five miles from Godley, Tex., out on a farm. We moved to the farm some time in December, last year. In May, 1907, I lived in Godley. I know Hugh Whitehead; have known him six or seven years. I don't know whether I am kin to him or not. When he and my sister first married, they lived on our place and rented from my father. He lived there a year I think, and from there moved to Lum Glen's place, about two miles from that place, in Johnson county. I think he stayed there about a year, and from there he moved to Godley, and lived there some time. I don't know how long, and from there moved to Weatherford. I remember visiting him in Weatherford. I don't remember how long that was after he came. I was then 13 years old; would have been 14 on the 9th of June, 1907. I was never married to the defendant Hugh Whitehead. I came to Weatherford the latter part of May, on Friday or Saturday. I remember that because school was out. Our school closed in May. I don't know about what time. It was closed about a week when I came here. The school exercises had continued, and they were going on when I came here. My father and Mr. Harris came here with me. Mr. Harris lives at Godley, and keeps store there. We all bought tickets to come up here. I was there when they bought the tickets. It was late when we got here. We came on the Santa Fé train. It was about 1 o'clock when we came to Godley. No one met us at the train here at Weatherford. I had never been on a visit to Hugh here before that. My father and I walked out to where Hugh Whitehead lived, on the Rushing place. I don't know where the Texas Female Seminary is. Hugh and his people lived right smart piece from town, about two or three miles. We walked way out there. It was late in the evening when we got to my sister's. My sister and the baby were then at home and Hugh was in the field. My father stayed with me there that night. He stayed one day and went back the next day. I think there were three rooms in the house Hugh lived in—two bedrooms, and the kitchen and dining room were together. When my father and I were there, Hugh's wife and Hugh slept in the other room both nights. My father was there two nights. I slept in the same room with my father. I slept on a cot and my father slept on a bed on the floor; and we slept the same on the second night. They had one bed in the house, and Hugh and Ella, his wife, slept in the bed. The nearest neighbor at that time was Mrs. Beck, who lived about 100 yards away, across a public road, and down in a hollow. The defendant, Hugh Whitehead, came to the bed where I was on the day after my father left there. Defendant had one child at that time, which was then over a year old, and that child was in that room in a cot. It was along about sundown when the defendant came to me. His wife was then at Beck's. I don't know what she had gone there for. She went over to get something, I don't remember what. I was feeling badly on that day, had a headache, and one thing another, and lay down to rest. It was about dark; along about sundown. There was no light burning in the room where I was. I don't remember whether the defendant had been at work or around home that day. My monthly sickness first appeared when I was about 12 years old. They stopped when I had measles, stopped a day or two, and my father had to get some medicine. After that I had my sickness on up to the time I came up here. My sickness was just going off when I came up on this visit to Hugh and his wife. I remember that because I pulled off the cloth before I left home. I never had my sickness any more until my baby was about nine months old. My baby was born 28th of February, 1908. When defendant came to my cot, he just told me to keep my mouth shut, and he put his hands under my clothes and got up on top of me, and had intercourse with me. I know what is meant by a man's private parts and a woman's private parts. His private parts penetrated mine. When he got off me, he told me to keep my mouth shut; if I ever told anybody, he would kill me and my father. At that time I had on a dark skirt and a white one, and this intercourse stained the white one through the dark one. I never noticed the dark skirt to see if it was stained. I stayed at the defendant's eight or nine days after that. I did not tell my sister about this; nor my father or mother when I got home. I did not tell my sister because it scared me when defendant told me he would kill me and my father. When I was at my sister's, I was afraid he would kill me if I told her. My sister went back with me to Godley on a Monday. I stayed here during all that week that I came and over until the following Monday. I don't remember how long my sister stayed at Godley. She came back here with my sister Annie, who is also called Mary. The defendant, Hugh Whitehead, is a man, and I am a female. I was in Parker county, Tex., when the defendant came to my cot."

Cross-examination by Mr. Martin: "I was 16 years old the 9th of last June. My father's name is R. N. Whitehead. I have a brother named Will Whitehead, and one named Jim Whitehead. Jim's wife's name is Ida. She is here. Jim is not here. He is at home in Johnson county. He is man grown. I have three brothers-in-law. One is named William Ponds, who is not here. I have not seen him in about six years. His wife has been living with us all the time he has been gone. He was in Oklahoma when I last heard from him. Hugh Whitehead is my brother-in-law, and so is Brace Upchurch, who lives in Hill county now. He has not been living with us the past year. My father is here as a witness. My father and I came here to visit Hugh and Ella the last of May, 1907, after school had been out a day or two. There were some entertainments after that, which I did not stay for. When I got back from that visit, the entertainments were over. My father and I came up here on Friday or Saturday. I did not swear before it was Friday, but I swore before it was Friday or Saturday. That was the only visit I ever made to Hugh while he lived here at Weatherford. I did not testify before that my father and I came up here and visited Hugh the first time at Smith's and stayed a day or two. I did not visit Hugh at I. E. Smith's place west of town about a mile; did not visit him there with my father. I don't know when they moved to Florence Patrick's place. I did not visit them and stay a few days until they moved to Florence Patrick's place in town. I don't recollect anything about it. If I visited them any more than I have stated, I don't remember about it. We came up here in 1907 but once. I visited Weatherford just once before I came here to court, and that time my father and Mr. Harris came with me. Harris is here as a witness. I am well acquainted with him. He came out and took dinner with Hugh while I was there, and my father went home that evening with Mr. Harris. Hugh at that time was working on a title farm near where he was living. I cannot state about what time my father and Harris left to go home that evening. It was Monday or Tuesday. It was Monday. He stayed two nights I am certain. I did not swear on the other trial that it was Sunday about sundown that defendant had intercourse with me, or between sundown and dark. I never swore it was Sunday, because father stayed here two nights. My father never told me he went home Saturday. I never swore Hugh had intercourse with me on Sunday. He did have intercourse with me along about sundown while his wife was at Beck's, down across the road in the hollow about 100 yards from their home. We could not talk between there and Beck's without hollering. I never talked with Mrs. Beck across there, and I don't remember hearing my sister do so. She has hollered over there a time or two. She would be on her gallery talking to Mrs. Beck on her gallery. I did not swear on the other trial that Ella went to Mrs. Beck's to get some coffee that evening that Hugh had intercourse with me. I never said she went over there to get coffee. I don't know what she went for. She was gone 15 or 20 minutes. I couldn't tell how long she had been gone when Hugh came to me. I never knew Hugh was there when she left. When I first discovered him, he came in the door. I had my day clothes on; had not undressed. I had a white dress on. The baby was on the bed asleep in the other room. I knew that because Ella told me to notice it when she left. I was lying down when she left. I got up and went in the room, and saw it lying on the bed. After I lay down on the bed, I never got up before Hugh came. When they was in the kitchen, I went in there, my head hurting me, and went in the room and looked on the bed, and seen it was all right, and lay down on the cot. The kitchen was towards the right from the room I slept in, and the big room was towards the left. My room was right off the side of it. The kitchen was further back. I never got up and went in the kitchen. I was sitting in the kitchen and came out and looked on the bed, and seen the baby was all right, and went in and lay down on the cot. I don't remember whether I was laying down or not before my sister left, nor where I was when she told me to watch the baby. I never lay down but once. I went from the kitchen in the big room and from there went and lay down. Defendant, the first thing he said to me, told me to...