Williams v. State

• Citation: 288 S.W. 205
• Decision Date: 17 November 1926
• Docket Number: (No. 9692.)
• Parties: WILLIAMS v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

288 S.W. 205

WILLIAMS v. STATE.

(No. 9692.)

Court of Criminal Appeals of Texas.

November 17, 1926.

Appeal from District Court, Hunt County; J. M. Melson, Judge.

Clifton Williams was convicted of rape, and he appeals. Reversed and remanded.

Thompson & McWhirter, of Greenville, and Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

LATTIMORE, J.

Conviction in district court of Hunt county of rape; punishment 15 years in the penitentiary.

The facts in this case, from the state's standpoint, showed that appellant kept company with prosecutrix, a girl 16 years of age, for quite a while, and that after several ineffectual attempts to have carnal knowledge of her he succeeded in accomplishing his purpose. There followed a continuation of such conduct, resulting finally in the birth of a child. Appellant was prosecuted and convicted, with the above result.

There appears nothing in appellant's complaint directed at the admission of testimony to the effect that prosecutrix had given birth to a child. Such fact furnished indisputable proof that she had been with some man. Further complaint of the reception of her testimony that her mother was dead is of no avail to appellant, in view of the fact that the father of the girl had already testified without objection to the death of his wife.

Several bills present exceptions to testimony of prosecutrix as to separate, disconnected acts of intercourse with appellant subsequent to the one which forms the basis of this prosecution. As far as we can see such testimony served no useful purpose in solving any disputed issue in this case, and that it was of probable hurt to the accused may be reflected in the 15-year penalty given him, this being a case of rape by consent, and so submitted in the charge of the court. Rosamond v. State, 94 Tex. Cr. R. 8, 249 S. W. 468; Id., 99 Tex. Cr. R. 569, 263 S. W. 298. We think the testimony of the subsequent acts wrongfully received.

We are not in accord with appellant's objection to testimony of attempts on his part to induce prosecutrix to submit to him prior to the time of accomplishment. Such proof would seem to support the theory of actual later intercourse. Clardy v. State, 66 Tex. Cr. R. 351, 147 S. W. 568.

The allegations of the indictment would support a conviction for rape by force as well as one with consent. The testimony of the prosecutrix tends strongly to show rape by force. Appellant sought to cross-examine her upon those facts sworn to as showing rape by force, but, upon objection by the state, was not allowed to do this. The court's qualifications to the bills presenting these exceptions make it appear that in the opinion of the learned trial judge it was material and relevant for the state to show force, but immaterial and irrelevant for the accused to combat such proof. Certainly proof of force adds an aggravating element to this offense which would tend to increase the punishment (Lusty v. State, 97 Tex. Cr. R. 170, 261 S. W. 775), and the valuable right of cross-examination in this regard should not have been refused. Same might have served to remove the question of force from the jury's consideration.

The main contention of the accused was that prosecutrix, as stated, a girl 16 years of age at the time of the alleged rape, consented to said act, and, further, that she was...