Public-domain · open source
OpenJurist

79 Tex. Crim. 9

185 S.W 29

Miller v. State

Court of Criminal Appeals of Texas

Decided December 15, 1915

Court of Criminal Appeals of Texas · decided 1915-12-15

<p>1. — Rape—Indictment—Precedent.</p> <p>Where, upon trial of rape of a girl under the age of consent, the indictment followed approved precedent, there was no error in overruling the motion to quash.</p> <p>3. — Same—Sufficiency of the Evidence — Practice on Appeal.</p> <p>Where, upon trial of rape upon a female under the age of consent, the evidence, although conflicting, supported the conviction under a proper charge of the court, there was no reversible error.</p> <p>3. —Same—Bills of Exception— Qualifications by Court — Rule Stated.</p> <p>It is not only proper, but necessary in a great many instances, for the trial judge to explain and qualify bills of exception so that this court in reviewing the question can more readily comprehend the point, to pass thereon, and where no material injustice had been done the defendant, there was no reversible error.</p> <p>4. —Same—Continuance—Want of Diligence.</p> <p>Where the application for continuance showed an utter want of diligence to procure the attendance of the alleged absent witnesses, and the bill of exceptions so stated as the court qualified the same, there was no error in overruling the same. Following Stacey v. State, 177 S. W. Rep., 115.</p> <p>5. —Same—Bill of Exceptions — Evidence—Age of Prosecutrix — Marriage.</p> <p>Where the bill of exceptions did not show what the witnesses would have testified, the same was fatally defective, but even if prosecutrix would have stated that she told defendant she was over age at the time of the alleged rape it would have been wholly immaterial, especially where the defendant got the lowest punishment. Following Martin v. State, 73 Texas Crim. Rep., 546, and other cases. And so would have been the fact that she was previously married. Following Smith v. State, 74 S. W. Rep., 557.</p> <p>6. —Same—Character of Prosecutrix — Specific Acts of Intercourse.</p> <p>Where, upon trial of rape upon a female under the age of consent, the trial court ruled that specific acts of intercourse with other men on the part of prosecutrix were not admissible in evidence, but subsequently thereto reversed his ruling and held that defendant could prove such specific acts of prosecutrix with other parties to show her general reputation as to chastity and veracity, and that the prosecutrix could be asked and required to answer such questions thereon, and no exception was taken thereto and no witness was offered to prove such acts, and no request made to retire the jury while this point was being discussed by court and counsel, there was no reversible error. Harper, Judge, dissenting.</p> <p>7. —Same—Evidence—Cross-examination—Immaterial Testimony.</p> <p>Where, upon trial of rape upon a female under the age of consent, the prosecutrix on cross-examination by defendant testified that she had told defendant that she had married a certain party a year or so before the alleged offense was committed, and she had testified on her examination in chief that she did not so tell him until after the act of intercourse, and she had named the residence and names of witnesses who were present at such marriage, and witnesses of such name were subpoenaed by defendant and produced before her while she was being cross-examined, and she denied positively that either of them were the respective persons she had named, and said alleged witnesses denied that they were present at this marriage ceremony or had any knowledge on the subject, and the court thereupon instructed the jury not to consider this testimony because it was immaterial, there was no reversible error. Following Williams v. State, 24 Texas Crim. App., 637, and other cases. Harper, Judge, dissenting.</p> <p>8. —Same1—Evidence—Impeaching Own Witness — Grand Jury Testimony.</p> <p>Where, upon trial of rape upon a female under the age of consent, the parents of prosecutrix' were hostile to the State, and testified in favor of the defendant when the State placed them upon the withess stand, there was no error in permitting the district attorney to ask them leading questions, show them their own testimony before the grand jury, which was against the defendant and in behalf of the State, and therefrom ask them, respectively, if they did not so testify, some of which questions they denied and others of which they admitted, the court properly limiting such testimony. Following Mischer v. State, 69 Texas Crim. Rep., 223. Harper, Judge, dissenting.</p> <p>9. —Same—Argument of Counsel — Other Acts of Sexual Intercourse.</p> <p>Where, upon trial of rape upon a female under the age of consent, there was testimony introduced which by inference at least tended to show more than one act of sexual intercourse, and the district attorney in his argument alluded thereto, there was no reversible error, although the court had erroneously refused to permit the State to prove directly more than one act of sexual intercourse. Following Battels v. State, 63 Texas Crim. Rep., 147. Harper, Judge, dissenting.</p> <p>10. —Same—Misconduct of Jury — Withdrawal of Testimony — Argument of Counsel'.</p> <p>Where the testimony of three of the jurors was amply sufficient to justify the trial judge to conclude that the jury did not go out of the record and discuss facts and matters not in the record; that they did not consider nor discuss any of the excluded evidence about the defendant committing other similar offenses; that they did not consider nor discuss what the district attorney said in his argument about other offenses and that it did not influence them, and that besides that if the jury mentioned and considered any of these outside matters it was after, and not before, they had all agreed on defendant’s guilt, and, besides, defendant refused to examine the other jurors upon the question of misconduct of the jury, although invited to do so by the court, there was no reversible error. Following Lamb v. State, 169 S. W. Rep., 1158. Harper, Judge, dissenting.</p> <p>Í1. — Same—Discretion of Trial Judge — Rule Stated — -Harmless Error.</p> <p>District judges are sworn officers of the law and have the opportunity on motion for new trial as well as on.the trial itself to hear all the witnesses, observe their manner of testifying, and the conduct of direct and cross-examination of the witnesses by the attorneys, etc., and to observe the whole conduct of the trial, as well as to hear the jurors testify on the motion for new trial as to misconduct of the jury, and where, as in the instant ease, the trial judge did not abúse his discretion, but corrected errors when he committed them in such a way as to render them harmless, there was no reversible error. Following Martin v. State, 73 Texas Crim. Rep., 546. Harper, Judge, dissenting.</p> <p>12. —Same—Failure to Examine Witnesses — Rule Stated — Presumption.</p> <p>If a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable, and where the defendant alleged the misconduct of the jury in considering extraneous matters when deliberating upon their verdict, and only introduced three of the jurors whose testimony did not sustain his contention and declined to introduce the other jurors as witnesses, although they were in attendance, there was no reversible error in overruling his motion for new trial. Following Sweeney v. State, 65 Texas Crim. Rep., 593. Harper, Judge, dissenting.</p> <p>13. —Same—Evidence—Other Offenses — Impeaching Witness.</p> <p>Upon trial of rape upon a female under the age of consent, the State had the right to prove by defendant himself on cross-examination, in order to impeach him, that he had been arrested under a complaint charging him with the seduction of another female, and that in order to prevent a conviction therefor he had married the seduced girl so as to make her his wife and thereby prevent her from testifying against him; besides such testimony was admissible to show defendant’s system of crime in these sexual offenses with young girls. Following Chance v. State, 63 Texas Crim. Rep., 603, and other cases, and while the details of defendant’s connection with such similar offenses was inadmissible, yet no injury resulting therefrom, and the testimony being immediately withdrawn, there was no reversible error. Following Miller v. State, 31 Texas Crim. Rep., 609, and other cases. Harper, Judge, dissenting.</p> <p>14. —Same—Rule Stated — Withdrawing Testimony Illegally Admitted.</p> <p>While there is contrariety in the decisions of this -court on the subject of the withdrawal of the testimony improperly admitted, yet the true rule is that if the admitted testimony is of such damaging character as to suggest the impossibility of withdrawing the impression produced upon the minds of the jury and thus curing the error, it will be cause for reversal; otherwise such testimony can he withdrawn and the error thereby cured, and where, as in the instant case, the admission of such testimony was not of that character the same could be withdrawn, and there was no reversible error. Following Hatcher v. State, 43 Texas Crim. Rep., 237, and other cases. Harper, Judge, dissenting.</p> <p>15. —Same—Argument of Counsel — Rule Stated — Practice in District Court.</p> <p>When an objectionable statement is made in the argument of State’s counsel which is not authorized by the evidence or a deduction therefrom, mere objecting thereto will not present error as the defendant must also request a charge requiring the jury to disregard it, and where, as in the instant case, this was not done, there was no reversible error. Following Mooney v. State, 76 Texas Crim. Rep., 176 S. W. Rep., 52.</p> <p>16. —Same—Case Stated — Argument of Counsel.</p> <p>While this court emphatically condemns the argument of the district attorney in the instant case, still the record demonstrates that the jury did not consider it and 'it resulted in no injury to the defendant, and, therefore, it presents no reversible error. Harper, Judge, dissenting.</p>

Relies on G., C. & S. F. R'y Co. v. Levy · 37 Tex. Crim. 38 - Bice v. State · 52 Tex. Crim. 80 - Smith v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1915-12-15

How this case has been cited

Cited by 3 later decisions — most recently February 1988

3 state decisions

1019151920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1At the time the opinion was handed down affirming the judgment in this case, I entered a dissent, noting at the time I could not agree to the statement of the case as made in several particulars. Since that notation was made several material changes have been made in the statement. However, I think there are several other incorrect conclusions and deductions still embraced in the opinion, but I would enter no dissent if it were not for the incorrect applications of the law to the case, even as stated. To refer to what I deem the inaccuracies in stating the record would serve no useful purpose. The record is on file and those who desire may peruse it.

¶2Appellant was convicted of rape on a female under fifteen years of age. There is no question of force in the case, but if the intercourse occurred, it was by mutual assent. Zollie Jones, the prosecuting witness, testified that she had married Will Clements in Kaufman County some time before this alleged rape, but that the marriage had been annulled before her father moved to Travis County. That she lived with her father and mother, D.S. and Mattie Jones; that two grown brothers lived with them, and a younger brother; that her father kept a boarding house, and appellant, among others, boarded with them; that Mr. Davis, Mr. Knight, Mr. Wilson and Preston Williams also boarded with her father. No improper relations are shown to have occurred while appellant boarded at this house, nor for some three or four months after he quit boarding there, if any occurred. So the deduction in the original opinion as to his object and purpose in going there to board is not, in my opinion, supported by the record. Appellant quit boarding with Mr. Jones in January, and the girl testifies to the first act of intercourse as occurring in April following. Similar deductions from the testimony are stated instead of stating the evidence.

¶3There are a number of bills in the record which, in my opinion, present error, but I do not care to notice but two or three of them — just merely entering my dissent to the other rulings sustained, especially to those bills which show that appellant offered testimony that would tend to show that the prosecuting witness, Zollie Jones, was nothing more nor less than a common prostitute. It is true, as stated, the *31 court reversed his ruling to the extent that he said he would allow the appellant to show other specific acts of intercourse, but at the time cautioned appellant's counsel, "before you put the witness on the stand be certain that the witness will not refuse to testify on the ground of incriminating himself." He narrowed appellant down to proving specific acts and general reputation, and would not let them prove such facts and circumstances as the following: "The defendant expected to prove and the witness would have sworn that the prosecutrix, Zollie Jones, was not an innocent girl as held out to be by the district attorney, but that she was a bad girl and had been out at night-time with various parties; with street car men and with different boys, and that she had been to an old vacant house near where the old colored woman by the name of Lula Moore lived and met different boys there at various times for vile and immoral purposes, and that the old colored woman had reproached her for it and told her she was going to tell her mother about her going there with boys; and that she had got up in the night and slipped away from her mother to meet boys and that she had stayed out all night with one Curly White," etc. With appellant being tried for rape by consent on this girl, no witness would voluntarily get on the stand and testify to an act of intercourse — it would be like voluntarily placing one's neck in a halter, yet in revising his ruling the court so limited the evidence. And while no witness would have voluntarily testified to an act of intercourse, yet the bills show that the defendant offered to prove by various witnesses facts and circumstances that no jury could or would have drawn any other conclusion than that she was guilty of various acts of intercourse with various and sundry people named, — that she was a prostitute — and this should have been admitted as affecting her credit as a witness. For it is almost alone upon her testimony that the jury must have found that appellant had had an act of intercourse with her. No other witness so testified, except the circumstance testified to by Miss Watson. Her testimony was simply that she had never met appellant until introduced to him by Zollie Jones, the prosecuting witness; that she was never with appellant but twice in her life, and on one of these occasions appellant had said: "With reference to whether Kinney Miller stated on that occasion that he had had or had not had carnal intercourse with Zollie, I will state I understood him to say that he had; I might have misunderstood him. Yes, sir; I was right there at him. As to what else he said, he said he was willing to help the girl, he didn't say in what way — he would get the `stuff' or would give her the money to get it with." On cross-examination she said: "I understood Mr. Miller to state that he had intercourse with Zollie Jones; I might have misunderstood him." After this conversation with the girl she got in appellant's buggy and went riding with him and Zollie Jones.

¶4Appellant testified on the trial, and most emphatically denied that he at any time or under any circumstances had intercourse with the girl, Zollie Jones. So the only proof of intercourse was by the girl, about whom the defendant offered to prove facts concerning that no *32 jury could have drawn any other inference than that she was a common prostitute (but was denied the privilege), and the evidence of the girl's friend, who stated she understood him to admit it, but she might be mistaken, but who after this admission, was willing to go riding with appellant and the prosecuting witness, Zollie Jones.

¶5It is not altogether a question "of the lowest penalty," but the question of whether or not the jury would have found appellant guilty if only legitimate testimony had been introduced.

¶6It is true, as stated in the opinion of the majority, the Humane Society, composed of most excellent ladies and gentlemen, took up this matter and this case, and doubtless feel a deep interest in it, but the question before us is not whether or not a goodly number of most excellent men and ladies desire this conviction to be affirmed, but the question is, has legitimate evidence been excluded and improper evidence and improper argument used to secure this conviction, and but for such improper evidence and improper argument, and the exclusion of legitimate testimony, the jury trying the case may not have been convinced of his guilt. I agree to the rule, that improper evidence admitted, but withdrawn, which would have no direct bearing on the guilt of the person on trial, nor of the character to be prejudicial, should not work a reversal, and that is what all the authorities cited in the original opinion hold; but was the testimony, which this court and the trial court admit was improperly admitted, of that character? I do not think so. It appears that when appellant was a witness, most vehemently denying that he at any time had had intercourse with this girl, the State, on cross-examination, over objection of appellant, proceeded to prove by him, if not guilty of this offense, he was at least guilty of having intercourse with one Rosa Duffey several years ago. Not being satisfied with proving that such a charge had been brought against appellant, the State proceeded to prove, and the court required him to answer that he did in fact have intercourse with Rosa Duffey; that a baby was born; that it was a boy, and appellant did not even know the name of his boy, and did not know where the boy nor Rosa had gone. The jury would feel, if there was any doubt about him having intercourse with Zollie Jones, the prosecuting witness in this case, they would do no wrong if they punished him a little for the Rosa Duffey affair. But to show to what extent the court allowed the district attorney to go in his cross-examination, I will copy herein the questions and answers as shown by the record before us, omitting the various and sundry objections made:

¶7"Q. Mr. Miller, this is not the first time you had trouble with little girls, is it? A. The first time I have had trouble? A. Yes. A. Yes, sir; the first time. Q. I will ask you if it is not only the first, but the second or third time that you have been charged of getting little girls under the age of fifteen years and having intercourse with them? (No answer.) Q. Mr. Miller, do you know little Rosa Duffey? A. Yes, sir. Q. How long have you known her? A. Three or four years. Q. How old was she when you first met her? A. I don't *33 know how old she was. Q. And you didn't care how old she was either, did you? A. No, I wasn't particularly interested in her age. Q. Was she so young — where was she living when you first met her? A. She was staying down with Mrs. Smith on Sixth Street. Q. Did she have a mother? A. Yes, sir. Q. She wasn't staying with her mother? A. No, sir. Q. Do you know how old she was? A. No, sir; I don't know. Q. Don't you know that she was not but twelve years old when you met her? A. No, sir; I don't know how old. Q. Was she a girl of very much education or mentality? A. I don't think so. A. But a fairly good looking girl? A. Yes, fairly good looking. Q. I will ask you if you did not seduce that little child — girl — and have intercourse with her and she was under fifteen years of age? Q. I would like to change my question. I will ask you if it is not a fact, now don't answer this until he has time to object — that you did have intercourse with that girl — child — that she was between twelve and thirteen years, of age — and not only once but many times, that you got her in a family way, and that there were legal proceedings started against you in that case for raping that girl, and after she had been in a family way you married her to keep from being prosecuted? A. No, sir; I did not. Q. You say you married her? A. Yes, sir. Q. And she was in a family way when you married her? A. Yes, sir. Q. How long after you married that girl was it before she had a baby? A. I can't tell you exactly how long. Q. You were not very much interested in your wife at that time — you do not remember how long it was before she had a baby? A. I can't tell you exactly. Q. Can't you tell about how long it was? A. No, sir. Q. You did not care how long it was, did you? Was it the next day, the next week, the next month? A. I can't see how it would do any good to care. Q. You don't know whether it was a girl or boy, do you? A. Yes, sir; it was a boy. Q. Do you know its name? A. No, sir; I don't know its name. Q. Don't even know its name? Well, where did you marry her? A. I married her at Mr. Johnson's, the justice of the peace. Q. Did you stay with her that night? A. No, sir. Q. You didn't stay with her? You went back to your room, did you? A. Yes, sir; I did. Q. After you were united in the holy bonds of wedlock with this girl do you know where she went that night? A. Back down to where she was stopping, back to Mrs. Smith's. Q. How long did you live with her? A. I didn't live with her at all, you might say. Q. You didn't live with her at all — do you remember your vow? A. Yes, sir. Q. Do you remember it or did you forget it — that you would not leave her? Do you remember it, that you would love her and care for her so long as you both did live, that you promised that in the eyes of God and man? That is the marriage ceremony you took with her, isn't it? A. Yes, sir. Q. Why didn't you live with her? A. Because I found out she was a bad girl. Q. Did you find out the very minute you married her? A. No, sir. Q. She bore your baby and you don't know its name, do you? A. No, sir. Q. And don't *34 care? A. No, sir. Q. Who was the next one you took up with — or before I leave that, why did you marry Rosa? A. Because I wanted to. Q. Why did you leave her that very night? A. When I married that night, when coming back, she asked me did I care if she kept going with Mr. Cole. Q. You didn't want to soil yourself by living with a woman that had been having intercourse with you before she was married to you? A. I knew she was still going with this man. Q. You knew, too, that you had been having intercourse with her? A. Yes, sir. Q. Have you contributed anything to the support of that child? A. Yes, sir. Q. But you don't even know its name? A. No, I don't know its name. Q. Who was the next child that you had intercourse with? A. The next child? Q. The next girl you ruined? A. I never ruined any girl. Q. You never ruined any girl? You have been very careful about your reputation, haven't you, to keep from going with anyone who bears your name and your child? Now, what were you going out with Zollie for? A. I liked her and liked to be in her company."

¶8If there is any rule of law rendering this testimony admissible, the writer has failed to find it. The opinion affirming the case admits it was error, but says the trial court excluded it after he had permitted the jury to hear it; that the trial court said in approving the bill, that he thought the State would prove a system of raping girls, and when he found the State could not prove such a system he excluded it. If such testimony would be admissible to prove system, it is a new rule of law that I have been unable to find heretofore expressed in any of the opinions of this court or any text-writer. System is as to the mode or manner of committing crime, to show that the present crime was committed in the same way. There is no attempt to show a mode and manner of committing crime in the above testimony, but only to make the witness admit he had sexual intercourse with Rosa Duffey; that she gave birth to a boy, and appellant did not know the name of the boy. Could the harmful and hurtful effects of such testimony be withdrawn? Could the prejudice necessarily created by it be taken from the minds and hearts of the jurymen? I do not think so. As well pour a bottle of ink in a bucket of clear water and then seek to withdraw it. It could not be done. There is but one way to get pure water again, and that is, empty out the polluted water and get a fresh bucket of water. There is but one way to give this man a fair trial in accordance with the rules of law — get a new jury whose mind has not been poisoned by this improper testimony.

¶9Mr. Wharton, in his work on Criminal Evidence, section 1719, says: "Notwithstanding the withdrawal of the evidence, its effect still remains, and the jurors being untrained in matters of discriminating between relevant and irrelevant evidence, the error is not cured."

¶10This court has held that error in admitting evidence, where it is of a material character calculated to influence the jury, is not cured by its subsequent withdrawal from the jury's consideration. In Clements *35 v. State, 61 Tex.Crim. Rep., this court, speaking through Judge Davidson, said:

¶11"The court in the charge to the jury withdrew from their consideration this evidence. It was said in Darnell v. State,58 Tex. Crim. 585, 126 S.W. Rep., 1122, `The State has used this testimony both before the jury and in the argument of the case as the most damaging testimony against appellant attacking his theory of self-defense.' It was further said in the Darnell case, `We are of opinion that the withdrawal of it from the jury, under the circumstances, did not cure the error.' Quite a number of cases are cited in the Darnell case in support of the ruling. In McCandless v. State, 42 Tex.Crim. Rep., it was held that the admission of evidence of a material character calculated to influence the jury is not cured by subsequent withdrawal from their consideration. And in Henard v. State, 46 Tex. Crim. 90, this language was used: `But it is said that the error of the court in admitting this testimony is cured by the subsequent exclusion thereof and withdrawal by the court of said testimony from the consideration of the jury. This question has been before the courts of this State in a number of cases. See Railway v. Levy, 59 Tex. 542; Miller v. State, 31 Tex.Crim. Rep.. We think the true rule on this subject to be: If the testimony is not of a very material character, it may be withdrawn by the court, and the error cured; but if, on the contrary, the evidence was of a material character, and was calculated to influence or affect the jury, the withdrawal of the same from their consideration would not heal the vice of its admission.' It was said in Railway v. Levy, supra, `It is true that the admission of some kinds of testimony, which a jury is afterwards directed not to consider, may not be sufficient cause for reversal; but we are of opinion that where, in cases like the present, evidence which is calculated to arouse the sympathies of jurors against the opposite party, is erroneously permitted to go before the jury, it is ground for reversal.' These extracts are from the Darnell case, 58 Tex.Crim. Rep., supra. If this is the rule in civil cases, by a much stronger course of reasoning it ought to be the rule in criminal cases."

¶12In Kemper v. State, 63 Tex.Crim. Rep., this court, speaking through Judge Scott, said:

¶13"And we here now lay down the rule to be that, where testimony has been admitted before the jury which is calculated to injure or prejudice the rights of the defendant, or which is calculated to seriously affect the credibility of the witness for the defendant, or to affect the weight of his testimony, that the court can not thereafter withdraw said testimony from the consideration of the jury, and thereby cure the harm or the error committed by the introduction thereof. The prosecuting officers of the State must understand, and the trial judges who make these rulings must understand, that this court will not hold such errors to be harmless, because we believe them to be harmful, and we recognize as correct the principle which was announced by one of the prosecuting officers in this case, according to the record, when, in *36 referring to the withdrawing of testimony that had been erroneously admitted, he said: `On the principle that that which is once in can not be withdrawn.'"

¶14In Barth v. State, 46 S.W. Rep., 228, this court, speaking through Judge Henderson, said:

¶15"But it is said that the error of the court in admitting this testimony is cured by the subsequent exclusion thereof and withdrawal by the court of said testimony from the consideration of the jury. This question has been before the courts of this State in a number of cases. See Railway Co. v. Levy, 59 Tex. 552 [59 Tex. 552]; Miller v. State, 31 Tex.Crim. Rep., 21 S.W. Rep., 925. We think the true rule on this subject to be: If the testimony is not of a very material character it may be withdrawn by the court, and the error thus cured; but if, on the contrary, the evidence was of a material character, and was calculated to influence or affect the jury, the withdrawal of the same from their consideration would not heal the vice of its admission. As was said in Railway Co. v. Levy, supra: `It is true that the admission of some kinds of testimony, which a jury is afterwards directed not to consider, may not be sufficient cause for reversal; but we are of opinion that where, in cases like the present, evidence which is calculated to arouse the sympathies of jurors in favor of the party who offers it, and to arouse the feelings of the jurors against the opposite party, is erroneously permitted to go before the jury, it is ground for reversal.' If this is a good rule in civil cases, by a stronger reason it ought to be the rule in criminal cases."

¶16I could continue the citation of authorities from the decisions of this court, but do not deem it necessary, for in my opinion it is made manifest that this testimony was not in fact withdrawn from the consideration of the jury.

¶17In his closing address the district attorney in his argument to the jury said:

¶18"Little Zollie Jones has told you that the defendant did have intercourse with her and no witness has denied it but the defendant himself; how much attention are you going to pay to the defendant's testimony on this point when you know he is swearing to save himself from the penitentiary and possibly his life and when you consider that when he was on the stand he admitted that he married poor little Rosa Duffey and abandoned her immediately, although he had got her pregnant and that he did not know his baby's age and had forgotten its name, that he did not know where poor little Rosa Duffey was and didn't care?"

¶19This argument was promptly objected to, and the court overruledthe objection, and stated to the district attorney he would be given additional time, because he had been interrupted by the objection made. In approving the bill the court does not deny he permitted this argument, but says when the motion for new trial was presented he had all the jurymen summoned and tendered them to counsel for appellant, that he might examine them and see if this improper testimony and *37 improper argument had any effect on the jury, and because counsel for defendant declined to put all the jurymen on the stand, the court concludes that the improper testimony and improper argument was not considered by the jury. Counsel for defendant did place three of the jurymen on the stand, and two of them say the improper argument and testimony was not discussed and did not influence them, but Mr. McNutt, the foreman of the jury, says he heard "three or four of the jurymen discussing this improper testimony and argument, and he told them they must not do so. That all the jury was there talking and some of them spoke up and said they thought his reputation was enough." Appellant had not put his reputation in issue, and there was no testimony introduced as to his reputation, except the Rosa Duffey affair.

¶20It is the first time in the history of this court, so far as I have been able to ascertain, when it has been held that when the defendant had shown that improper testimony had been admitted, that improper argument of a grievous nature made, it then became the duty of appellant to show by examination of the jurors that such improper evidence and improper argument was in fact the reason why they convicted the person on trial. This is going further than this writer is willing to go, even though he knows, and has been made to know, that a great many good men and women desire this conviction to stand. I would not be understood as intimating that such influences could or have influenced my brethren in rendering the opinion they have rendered. I know them too well to think that they would let such matters influence them, or cause them to do other than as they deemed right, and their duty under the law. But viewing these matters as I do, I would be recreant to my duty and unworthy of the position I hold, if I did not enter this my dissent to such a rule of law.

¶21If the court excluded the testimony, certainly he should have sustained appellant's objection to the argument, for it would be then about matters not in evidence, and this court has always held this improper. In the case of McKinley v. State,52 Tex. Crim. 182, this court, speaking through Judge Davidson, said:

¶22"Permitting attorneys for the prosecution to dwell in argument on the character of a defendant when not in issue, in a way calculated to prejudice him before the jury, is error. See Turner v. State, 39 Tex.Crim. Rep.; Pollard v. State,33 Tex. Crim. 197. Nor is vituperative and abusive argument permissible, and a conviction obtained in this manner is unlawful, and where the record on appeal shows such was permitted to prejudice the accused before the jury, the appellate court should not hesitate to set it aside. See Crawford v. State, 15 Texas Crim. App., 501, and Parks v. State, 35 Tex. Crim. 378. And it is error for counsel in argument to state facts not in evidence. See Tillery v. State, 24 Texas Crim. App, 251; Orman v. State, 24 Texas Crim. App., 495; Clark v. State, 23 Texas Crim. App., 260; Robbins v. State, 47 Tex.Crim. Rep., 11 Texas Ct. Rep., 560; Bell v. State, 56 S.W. Rep., 913; Harris v. State, 17 Texas Ct. Rep., 815; Harris v. State, 50 Tex. Crim. 411, 17 Texas *38 Ct. Rep., 270; Powell v. State, 70 S.W. Rep., 218, 9 Texas Ct. Rep., 813, and White's Code of Crim. Proc., pp. 498, 500 and 501, for collation of authorities. In our opinion the statements in the argument of the closing speech for the State were of such character that the conviction ought not to be permitted to stand. Usually the instruction of the court to the jury to disregard unwarranted remarks by counsel will be regarded sufficient to prevent a reversal, but where they are of a very damaging character and in cases that inflame or have a tendency to inflame the public mind, a different rule obtains. Not only was the character assailed, but statements of fact made which, if in existence, were not permitted to go before the jury. We wish to emphasize our condemnation of the practice of permitting matters of this sort to occur and then seeking to withdraw them from the jury by charges, and we want to emphasize again that it is wholly unnecessary to jeopardize convictions by this line of conduct. The Constitution and the laws of the State guarantee a man a trial and a fair trial on the facts and the law of his case, and it is not legal that matters and facts of this character can be introduced in the argument to the jury or by counsel in the argument, even when if offered through witnesses they would have been admissible; the damage, therefore, would be the greater where the facts were not admissible at all. It is a dangerous practice even for the court to admit testimony that is illegal and then undertake to withdraw it in his charge, and this court has had occasion to reverse judgments on account of this practice."

¶23A long list of authorities so holding will be found in Standard Ency. of Proc., pages 819 and 820, from this State and nearly every State in the Union.

¶24In Branch's Crim. Law, section 61, the authorities from this State are collated, and it is held error for State's counsel to get before the jury in argument a fact which he would not be entitled to prove the effect of which is damaging to the defendant, citing Jenkins v. State, 49 Tex.Crim. Rep.; Rodriquez v. State, 58 Tex.Crim. Rep., 125 S.W. Rep., 404; Askew v. State, 54 Tex.Crim. Rep.; Baughman v. State,49 Tex. Crim. 33; Coleman v. State, 49 Tex.Crim. Rep.; Cline v. State, 71 S.W. Rep., 23; Turner v. State, 39 Tex. Crim. 329, 45 S.W. Rep., 1020; Battles v. State, 53 Tex. Crim. 202, 109 S.W. Rep., 195; Fuller v. State, 30 Texas Crim. App., 559, 17 S.W. Rep., 1108; Bice v. State, 37 Tex. Crim. 43, 38 S.W. Rep., 803; Pollard v. State, 33 Tex. Crim. 203, 26 S.W. Rep., 70, and many other cases cited in the above quoted section.

¶25Under no phase of this case was the testimony that appellant was guilty of raping Rosa Duffey admissible. The fact that two or more crimes may have been committed in the same way does not show system. (Long v. State, 39 Tex.Crim. Rep.; Barkman v. State, 52 S.W. Rep., 69; Smith v. State, 52 Tex. Crim. 80. )

¶26Defendant should be tried on merits of each case, and proof of extraneous crimes which does not go to show intent, identity, or system, *39 or which is not part of the res gestae, is not admissible if it could only show that defendant was a criminal generally. Gilbraith v. State, 41 Tex. 567; Buck v. State, 83 S.W. Rep., 390; Lee v. State, 73 S.W. Rep., 407; McIver v. State, 60 S.W. Rep., 51; Buck v. State, 38 S.W. Rep., 772; Kelley v. State, 18 Texas Crim. App., 262; Bryan v. State, 49 Tex.Crim. Rep.; Nixon v. State, 31 Tex.Crim. Rep.; Williams v. State, 24 Texas Crim. App., 412; Ivey v. State, 43 Tex. 425; Grant v. State, 42 Tex.Crim. Rep., 58 S.W. Rep., 1026; Wilson v. State, 41 Tex.Crim. Rep., 51 S.W. Rep., 916; Williamson v. State, 13 Texas Crim. App., 514; Conley v. State, 21 Texas Crim. App., 495; James v. State, 40 Tex.Crim. Rep.; Unsell v. State, 39 Tex.Crim. Rep.; Owens v. State, 39 Tex. Crim. 391; Welhousen v. State, 30 Texas Crim. App., 623; Owen v. State, 58 Tex.Crim. Rep., 125 S.W. Rep., 405; Johnson v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 667; Jordan v. State, 96 S.W. Rep., 35; Lightfoot v. State, 106 S.W. Rep., 345; Hill v. State, 44 Tex.Crim. Rep., 73 S.W. Rep., 9; Marshall v. State, 22 S.W. Rep., 878; Schwen v. State,37 Tex. Crim. 370, 35 S.W. Rep., 172; Neumann v. State,58 Tex. Crim. 248, 125 S.W. Rep., 28; Holland v. State,55 Tex. Crim. 27, 115 S.W. Rep., 48; Pace v. State, 58 Tex. Crim. 90, 124 S.W. Rep., 949; Chumley v. State, 20 Texas Crim. App., 547; Woodard v. State, 51 S.W. Rep., 1122; Brown v. State, 54 Tex.Crim. Rep., 112 S.W. Rep., 80; Latham v. State,39 Tex. Crim. 472; Dimry v. State, 41 Tex.Crim. Rep.; Haney v. State, 57 Tex.Crim. Rep., 122 S.W. Rep., 34; Pridemore v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 1112; Crass v. State, 30 Texas Crim. App., 480; Cesure v. State, 1 Texas Crim. App., 19.

¶27Proof of other offenses is not admissible to show system, intent or identity, unless some of these matters are in issue. Denton v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 670; Parker v. State, 75 S.W. Rep., 30; Glenn v. State, 76 S.W. Rep., 759; Bink v. State, 89 S.W. Rep., 1076; Davenport v. State,49 Tex. Crim. 11, 89 S.W. Rep., 1077; Johnson v. State,50 Tex. Crim. 116, 99 S.W. Rep., 556; Herndon v. State,50 Tex. Crim. 552, 99 S.W. Rep., 558; White v. State, 11 Texas Crim. App., 476. System, identity, intent, etc., were not made an issue on this trial, and could not be an issue under the evidence.

¶28Not only has it always been held in this character of case that proof that the person on trial had committed other crimes was inadmissible, yet in those cases, where the other offense was res gestae of the transaction, or was admissible to show intent or system, it has always been held that State's counsel should not be permitted to go into details of the offense, and inquire whether or not the person on trial was or was not guilty of such offense. Menefee v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 138; Ware v. State, 36 Tex.Crim. Rep., and other cases.

¶29In my opinion there are other errors in the record, but if the above *40 are not of a grave enough nature to cause a reversal of the case, it would be useless to discuss the others, and this opinion is already of too great length. Not only was testimony admitted that appellant was guilty of the crime of rape on Rosa Duffey three years and more prior to this alleged offense on Zollie Jones, but the details were gone into and the abhorrence of the district attorney made manifest that appellant did not even know the name of the boy. It can not be said the testimony was excluded, for the district attorney was permitted to argue the whole details of these other crimes to the jury over the objection of appellant, and this argument was in no way limited in the court's charge. If such can be said to be harmless error, then there are no harmful and hurtful errors.

¶30Appellant may be guilty of this crime. The record discloses a great many good men and women may believe so, but what we are passing on is whether or not appellant has been accorded a trial in accordance with the law of the land. It is far more important that the law be maintained in its purity than that any one man be confined in the penitentiary walls, or go free of merited punishment.

¶31May the time never come when the law may be bent, or the judgment of the courts swayed, by their abhorrence of the crime, or detestation of the criminal.

/79/texcrim/9 · .json · Public domain