Wood v. State

• Decision Date: 18 October 1916
• Docket Number: (No. 4199.)
• Citation: 189 S.W. 474
• Parties: WOOD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 474

189 S.W. 474

WOOD v. STATE.

(No. 4199.)

Court of Criminal Appeals of Texas.

October 18, 1916.

On Rehearing, November 15, 1916.

Appeal from District Court, Coleman County; John W. Goodwin, Judge.

Clarence Wood was convicted of rape by force, and appeals. Affirmed.

Woodward & Baker and Snodgrass, Dibrell & Snodgrass, all of Coleman, for appellant. Critz & Woodward, of Coleman, Cunningham & Sewell, of Abilene, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of rape by force, and his punishment assessed at five years' confinement in the state penitentiary.

Miss Virginia Riley testified that on February 17th Dude White telephoned her, stating that appellant desired to take her to the show at Santa Anna that night; that her father objected to her going, and she could not go; that Dude then asked her if she would go with appellant to Charlie Freeman's and play forty-two, and that he (White) was going, and would play with Mr. Freeman's daughter. Witness testified she consented to go to Freeman's, and that night about 8 o'clock or 8:30, appellant came, and they drove to Mr. Freeman's. When they got there, appellant remarked, "Dude has not got here yet," and "Let's drive down the road a piece," as he wanted to get a cotton sack out of the field. She consented. They drove down the road about a quarter of a mile, when appellant stopped the horse and got out as if to get the sack, walked around the back of the buggy, threw a powder of some kind in her face, and caught hold of her pulling her out of the buggy, and she fell on her back, when appellant by force outraged her person, and she screamed, and resisted to her utmost, going into details as to what she did. Appellant testified, and admitted that he got Dude White to telephone Miss Riley; that Miss Riley did answer that her father objected to her going to Santa Anna. But he also testified she said "We will tell them we are going to Mr. Freeman's, but go to Santa Anna instead;" that he went for her about the time Miss Riley testified, and they started as if going to Mr. Freeman's, but in reality intending to go to Santa Anna; that on the road Miss Riley so conducted herself and from her conversation he believed she would submit to him; that he asked her to do so, and she at first objected, but finally got out of the buggy, and he spread a lap robe, and they had sexual intercourse at a different place to that testified to by Miss Riley; that Miss Riley offered no resistance, and he used no force. Dude White testified for appellant as to the telephone conversation, and corroborated appellant as to his version of the engagement. Sam Cobb testified he overheard the telephone conversation, and corroborated Miss Riley that the engagement was to go to Mr. Freeman's to play forty-two.

Appellant earnestly insists that the testimony is insufficient to support the conviction. To this contention we cannot give our assent. Miss Riley's testimony makes a case, especially when several witnesses testify to bruises on her back and on both her arms.

Appellant's first bill complains of the action of the court in overruling his application for a continuance on account of the absence of Mrs. Nona Moore, who at the time of the alleged occurrence lived only a quarter of a mile from the scene, as testified to by Miss Riley. She would have testified she was at home that night and heard no one scream. Appellant contends this testimony is material, as the state used L. C. Dunn as a witness, who testified he was at home reading, had his door open, and he heard screams about the hour Miss Riley testified to screaming. Dunn lived some further from the scene than did Mrs. Moore, but in the application it is not stated what she was doing at that time, nor whether her house was open or closed. This is the second application for a continuance, and it is the rule that there is no error in refusing it, when the absent witness would only testify to facts testified to by other witnesses. Appellant introduced several witnesses living in this neighborhood, who testified that they heard no screaming that night, and under such circumstances the bill presents no error. Fisher v. State, 4 Tex. App. 181; Walker v. State, 13 Tex. App. 643, 44 Am. Rep. 716, note; Beatey v. State, 16 Tex. App. 430; Tucker v. State, 23 Tex. App. 519, 5 S. W. 180; Hooper v. State, 29 Tex. App. 615, 16 S. W. 655; Bluman v. State, 33 Tex. Cr. R. 43, 26 S. W. 75; Bush v. State, 40 Tex. Cr. R. 541, 51 S. W. 238; Buckner v. State, 55 Tex. Cr. R. 511, 117 S. W. 802; Petty v. State, 59 Tex. Cr. R. 591, 129 S. W. 615; Allen v. State, 64 Tex. Cr. R. 225, 141 S. W. 983.

Miss Riley testified that when she went home that night her mother and father were at home, and it was developed that she did not tell her mother or her father about the occurrence that night. She testified she did not sleep any that night, and that before sunup next morning she went to Mrs. Elmore's, a near neighbor with whom she was intimate, and told her of the transaction. Nothing she told Mrs. Elmore was admitted in evidence, only the fact that the first complaint she made was to Mrs. Elmore the next morning before sunup. After it was developed that she did not tell her mother and father about the transaction when she got home that night, she was permitted to testify that her father was an old man, 74 years of age, and that he was very feeble, and that her mother was 67 years of age. She was also permitted to testify that as she returned home from Mrs. Elmore's, her mother being then up, she told her mother; and her mother was permitted to testify that the girl then was nervous and crying, and she continued to have nervous crying spells for a month or more. All this testimony was objected to, as is made manifest by appellant's bills of exception Nos. 10, 11, 12, and 22. If the complaint had been so soon after the occurrence as to be res gestæ of the act, it would have been permissible for Mrs. Elmore and her mother to have testified what the girl said to them, but the court recognized the correct rule, and permitted neither of them to testify what Miss Riley said, only that she complained to them, and they then were permitted to testify as to her condition; that she was nervous, was crying, and had bruises on her arm and back. Ever since the rendition of the opinion in Pefferling v. State, 40 Tex. 492, it has been the unbroken rule of decision that such testimony is admissible. In that case Judge Moore said:

"It has * * * been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and her condition * * * shortly after the alleged occurrence, may be proved as original evidence."

The court only permitted the witnesses to testify that complaint was made to them, and then testify as to her condition; and there was no error in admitting Mrs. Elmore's and Mrs. Riley's testimony. Lawson v. State, 17 Tex. App. 303; Holst v. State, 23 Tex. App. 7, 3 S. W. 757, 59 Am. Rep. 770; Reddick v. State, 35 Tex. Cr. R. 463, 34 S. W. 274, 60 Am. St. Rep. 56; Pettus v. State, 58 Tex. Cr. R. 546, 126 S. W. 868, 137 Am. St. Rep. 978; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ortiz v. State, 68 Tex Cr. R. 608, 151 S. W. 1059; and cases cited in Branch's Penal Code, §§ 1784, 1785. And after the mother testified as to the condition of the girl when she made complaint next morning, there was no error in permitting her to testify that she remained in that nervous condition for some time thereafter, and that she was crying on occasions when the subject was approached. This would be evidence of the severity of the shock to her mental and physical nature. Burge v. State, 73 Tex. Cr. R. 505, 167 S. W. 63; Jacobs v. State, 66 Tex. Cr. R. 149, 146 S. W. 558, and cases there cited and collated in Branch's Penal Code, § 1785. Nor was there any error in permitting the girl to testify that the reason she did not tell her father and mother that night as soon as she got there that they were old, her father 74 years of age, and her mother 67; that her father was very feeble. This was an explanation of her conduct, as it was contended that her failure then to complain was a circumstance on the issue of consent. Such explanation was reasonable under the circumstances in evidence. But, if such evidence had not been admissible as to the age of the parents, it would present no error, as the father and mother both testified on this trial, and the jury had a view of them. Appellant also contends it was error to permit the girl to testify that she resisted appellant "all she could," and "I did everything I knew how," he contending this was a conclusion and opinion of the witness. The record discloses that the girl testified to her various acts of resistance in detail; that, when appellant grabbed and undertook to take her out of the buggy, she caught the iron rods of the top and undertook to prevent him from jerking her out; that he jerked her loose, and threw her on the ground; that she screamed, and he placed his hand over her mouth, etc., and after she had thus detailed the facts there was no error in permitting her to tell that she resisted all she could, and did everything she knew how to prevent appellant from accomplishing her ruin.

Appellant complains of the action of the court in permitting the state to elicit from appellant on cross-examination that while he was in jail, charged with this offense, his brother-in-law, Claude White, visited him. The record discloses that as soon as the examining trial was held and appellant gave bond this brother-in-law and appellant went to the place where appellant claimed the act of intercourse took place, and this brother-in-law claimed to have discovered things that would support appellant's contention, and he then went to Mr. Daniels and got him to visit the spot and look at the scene and the objects claimed to have been found there. It was...