Wilson v. State

• Decision Date: 05 March 1902
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

67 S.W. 106

WILSON v. STATE.

Court of Criminal Appeals of Texas.

March 5, 1902.

Appeal from Parker county court; D. M. Alexander, Judge.

Zep Wilson was convicted of simple assault, and he appeals. Reversed.

Martin & Martin, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of a simple assault, and his punishment assessed at a fine of $25; hence this appeal.

The gravamen of the charge against appellant was that he was a male person, and made an indecent assault on prosecutrix, who was a female; that is, he fondled her person without her consent, causing her a sense of shame and mortification. On the trial appellant offered to prove by himself (he being a witness on his own behalf) that Martha Rierson (prosecutrix) had before the time of the alleged assault confessed to him that she had had carnal intercourse with three different men. The state objected to this testimony on the ground that it was irrelevant; that the same could not be used to impeach prosecutrix. The court sustained this objection. Appellant insists that said testimony was admissible for the purpose of showing that the prosecutrix consented to what was done by defendant at the time of the alleged assault; and, further, to show what defendant did was not done with the intent on his part to injure her, and that what he did was not calculated to produce in the mind of the prosecutrix any disagreeable emotions. The court explains the bill by stating that defendant had before testified that he had had carnal intercourse with the prosecutrix a number of times prior to the time of the alleged assault. It does not occur to us that the statement made by the court would be a sufficient reason for refusing evidence within appellant's knowledge that prosecutrix had had intercourse with other men. Certainly, with this knowledge on his part, if he had never had intercourse with her, it would be testimony tending to show that he had no intent to injure her by making an indecent proposition to her; that he felt warranted in doing so from the fact that she had told him she had had carnal intercourse with other men. In Hamilton v. State, 36 Tex. Cr. R. 373, 37 S. W. 431, other acts between the same parties were admitted in evidence. In Shields v. State, 39 Tex. Cr. R. 13, 44 S. W. 844, evidence of acts of carnal intercourse between prosecutrix and other parties was admitted; but it does not seem that objection was urged to the testimony. The...