W. G. GRAHAM
v.
THE STATE
No. 16308
Court of Criminal Appeals of Texas
Delivered November 8, 1933
State’s Rehearing Denied, Without Written
Opinion, January 24, 1934
67 S.W.2d 296 (Tex. 1933)
Appeal from the Criminal District Court of
Harris County. Tried below before the Hon. Whit Boyd, Judge.
Appeal from conviction for rape by force;
penalty, confinement in the penitentiary for fifty years.
Reversed and remanded.
The opinion states the
case.
W. C. Morris, S. B. Ehrenwerth,
and G. H. Cavanaugh, all of Houston, for appellants.
K. C. Barkley,
Crim. Dist. Atty., and Percy Foreman, Asst. Crim. Dist. Atty.,
both of Houston, and Lloyd W. Davidson, State’s Attorney, of
Austin, for the State.
CHRISTIAN, JUDGE. —
The offense is rape by force; the
punishment, confinement in the penitentiary for fifty years.
The testimony of prosecutrix, Elsie Wells,
was, in substance, as follows: Two or three months prior to the
assault she had accepted an invitation from appellant to ride to town
with him in his automobile. Appellant stated to her that he was
preparing to open a beauty parlor, and suggested that she might secure
employment in that business. On the night of February 6, 1933, she
went to the apartment of Miss Ruth Fayle with appellant and J. K.
Cartwright. There all of the parties drank some whisky. Later, she (prosecutrix),
appellant, and Cartwright drove away in Cartwright’s automobile. She
requested appellant to take her home, but he refused to comply and
drove out on the road, where he stopped the car. After the car had
stopped she sat on the back seat with appellant. He assaulted her, and
forced her to have sexual intercourse with him. Cartwright held her
while appellant engaged in the act. Appellant beat her, and tore her
clothing and undergarments. She fought to her utmost. She attempted to
get out of the car, but appellant restrained her. After the act had
been accomplished, appellant and his companion drove her back to town.
At the first opportunity she left the car and went to a nearby
residence, where she reported the matter to the occupants. The police
were called, and appellant was immediately arrested.
Cartwright, testifying for the state,
corroborated prosecutrix’s testimony touching the assault made on her
by appellant. He denied, however, that he held prosecutrix while
appellant accomplished the act. He declared that he endeavored to
force appellant to desist.
The proof on the part of the state showed
that prosecutrix’s clothes were badly torn; and that she was severely
scratched and bruised. Appellant testified that prosecutrix drove the
car to the point where the alleged assault occurred. He said he was
sitting on the back seat, and prosecutrix and Cartwright were on the
front seat. He declared that they were all drinking whisky. He said
that, while Cartwright and prosecutrix were on the
front seat, prosecutrix had her legs on
the steering wheel and Cartwright was fondling her person. He
testified, in substance, that prosecutrix told Cartwright that she
would be his girl; that Cartwright stated that he was too old to have
sexual relations with her, and suggested that she get on the back seat
with appellant; that she immediately got on the back seat with him,
and began “fooling” with his clothes; that he had on a ring that
belonged to his deceased brother; and she tried to take the ring; that
she suggested she might let his wife know about his presence with her;
that he told her to keep her hands off of the ring; that she said:
“You G___ d___ little b___d, you are just a cheap skate, that is all;”
that upon making these remarks she scratched the blood out of his
face; that he struck her two or three licks; that she viciously
attacked him; that they continued to fight until a car came along. In
short, appellant’s testimony was to the effect that prosecutrix was
the aggressor, and that her conduct was such as to invite both
Cartwright and himself to have sexual intercourse with her. He said:
“At no time did I have sexual intercourse with that girl. * * * I
never did suggest anything of that kind. Such a thing never entered my
mind until the suggestion was made — I never thought of such a thing.
There was nothing but just a drunken fight and drunken brawl between
me and this girl and Cartwright — that’s all there was to it.”
Eighteen bills of exception are brought
forward, fifteen of which were prepared by the court upon his refusal
to approve the bills presented to him by appellant’s counsel. The
first four or five of the bills prepared by the court relate to the
refusal to permit appellant to ask prosecutrix on cross-examination as
to specific acts of intercourse with various men in her apartment and
in hotels. The bills recite that, if she had been permitted to answer,
prosecutrix would have denied the acts. Bills of exception 8, 10 and
11, which were prepared by the court, relate to the court’s refusal to
permit appellant to prove by several witnesses that the general
reputation of prosecutrix for chastity was bad. Bill of exception No.
6, which was also prepared by the court, is concerned with the court’s
action in refusing to permit a witness for appellant to testify that
prosecutrix habitually spent the night in her apartment with various
men. One of the witnesses would have testified that prosecutrix had
undressed in his presence and had gone to bed with another man.
In offering the testimony shown in the
bills of exception we have mentioned, appellant’s counsel suggested to
the court that such proof was offered in mitigation of the penalty, as
affecting the credibility of
prosecutrix as a witness, and to throw light on her immoral character.
The state’s objection was that such testimony was inadmissible because
of the fact that appellant had denied the act, and hence that there
was no issue as to consent.
It is well settled in this state that when
consent is an issue, the general bad reputation of the prosecutrix for
chastity may be shown, as having a tendency to weaken the state’s
claim of nonconsent. Satterwhite v. State, 23 S.W.2d 356; Lawson v.
State, 17 Texas App., 292; Branch’s Annotated Penal Code, page 1003.
Again, as bearing on the issue of consent, proof that the prosecutrix
had had sexual intercourse with the accused on other occasions is
admissible, but intercourse with other men cannot be properly received
in evidence on this point. Satterwhite v. State, supra, and
authorities cited.
There are exceptions to the rules to which
we have adverted. Where such proof bears on a material issue,
testimony may be competent that the prosecutrix had been carnally
known by others than accused. For example, where the woman states that
the act of the accused caused her pregnancy, proof that she had been
carnally known by others is admissible to destroy this claim. Branch’s
Annotated Penal Code, page 1003; Satterwhite v. State, supra. So, when
there is proof by the state that the private parts of the female show
that she had been carnally used, the accused may show that such
condition could have resulted from the acts of others. Branch’s
Annotated Penal Code, page 1004; Satterwhite v. State, supra. So, when
prosecutrix testified that the act with the accused was her first and
only act, and that it caused her great pain and injury to her health,
proof that others had carnally known her is admissible. Stafford v.
State, 285 S.W. 314. Again, when there is proof that prosecutrix when
upbraided for her intimacy with a certain person, threatens that if
there be further talk of it she will lay it on the defendant who is
prosecuted, proof of acts of intercourse with others becomes
admissible. Shoemaker v. State, 126 S.W. 887.
In the case of Lawson v. State, supra, it
was urged that proof that the prosecutrix had had illicit carnal
intercourse with other men should be admissible in mitigation of the
punishment, if for no other reason. In passing on this contention, the
court said: “We concede the force and apparent justice of the
argument, and while in some of the states it has been adopted as the
rule, still, the great weight of authority, and the decisions of our
own state, are the other way.” The case of Calhoun v. State, 214 S.W.
335, presented a situation in which this court
expressed the opinion that there was error in excluding
testimony that the prosecutrix, who was a white woman, had habitually
bestowed carnal favors indiscriminately upon negro men. In holding the
proof admissible, this court, speaking through Judge Lattimore, used
language as follows:
“It occurs to us that, in a case where the
record discloses without contradiction that the female associated on
terms of equality with negroes around their homes and around her home,
the appellant should have been permitted to prove that the prosecutrix
frequently left her home and went to spend the day in the woods with
negro men, and, if the witness knew of his own knowledge, as appears
from the bill of exceptions, that she was in the habit of bestowing
carnal favors indiscriminately upon men, said witness might have been
permitted to state that fact, as it would certainly have had a very
strong bearing upon her credibility as a witness in the case and would
have been a mitigating fact as bearing on the punishment.”
In the opinion from which the foregoing is
taken, Judge Lattimore criticised the rule inhibiting proof of
intercourse with others when consent is an issue. He said: “It has
often been held by this court that the accused might prove prior and
other acts of intercourse between himself and the prosecutrix in cases
of rape as bearing on the question of consent. While not called upon
in this case particularly to discuss that question, this member of the
court confesses his inability to see how instances of intercourse with
the appellant on other occasions than the one charged would be
admissible as bearing on consent, but instances of intercourse with
men other than the appellant on other occasions would not be
admissible for any purpose.”
Also, in cases where the indictment
charges rape upon a female under the age of consent, and such female
testifies that she was forcibly raped, proof of previous acts of
intercourse with other named men is admissible in mitigation of the
punishment. Duty v. State, 25 S.W.2d 834; Lusty v. State, 261 S.W.
775.
It has been held error to refuse to permit
the accused to prove, on the cross-examination of the prosecutrix,
specific acts of intercourse with other men, where such admissions
evidence a state of morals which would place the prosecutrix in the
category of what is known as a common prostitute. Hastings v. State,
43 S.W.2d 113; Bigliben v. State, 151 S.W. 1044.
With the foregoing review of the rules, we
consider the bills of exception to which reference has been made. That
the trial court was in error in refusing to permit appellant to
question prosecutrix touching
habitual intercourse with men in her apartment and in hotels seems
clear. If this proof could have been elicited from prosecutrix, it
would have disclosed a course of conduct placing her in the category
of a common prostitute, and hence would have been admissible as
bearing on her credibility as a witness. Hastings v. State, supra;
Bigliben v. State, supra. However, in view of the fact that the bills
show that prosecutrix would have denied the acts, reversible error
cannot be predicated upon the action of the court in refusing to
permit the questions to be answered. Again, we deem it unnecessary to
decide whether, on the question of credibility, it was error to refuse
to permit witnesses other than prosecutrix to testify to the alleged
immoral conduct on the part of prosecutrix. Also, we do not decide
whether such testimony was admissible in mitigation of the punishment.
Appellant having expressly declared that
he did not have an act of intercourse with prosecutrix, there was no
issue as to consent. Hence, the general rule that, on the issue of
consent, proof is admissible that prosecutrix’s general reputation for
chastity was bad, and that she had engaged in previous acts of
intercourse with the accused, would have no application. This does not
mean, however, that testimony touching such matters would not be
admissible if it tended to solve some other material issue in the
case. Dyer v. State, 283 S.W. 820. For example, in Stafford v. State,
supra, Stafford had raised the issue that penetration was not
accomplished. The mother of the prosecutrix had testified as to the
effect of the act on the physical condition of the prosecutrix, her
testimony being to the effect that it ruined her health. It was held,
as bearing on these issues, that testimony of intercourse with others
than the appellant was admissible.
In the present case it has been observed
that prosecutrix testified that her physical condition was due to the
assault made upon her by appellant when he forcibly raped her. As
supporting her testimony, her torn and soiled clothing were introduced
in evidence. Her version of the transaction placed appellant in the
attitude of taking her against her will to the place where the assault
was committed, and of being the aggressor at all times. On the
contrary, appellant’s version placed prosecutrix in the attitude of
going voluntarily to the scene of the alleged assault and engaging in
conduct common to lascivious and unchaste women. If appellant were to
be believed, prosecutrix, in effect, solicited Cartwright to have
intercourse with her, and thereafter placed herself in a position to
encourage him (appellant) to carnally know her. Again, appellant
attributed the physical
condition of prosecutrix and the condition of her clothing to a
drunken fight between him, prosecutrix and Cartwright, which he said
grew out of and was connected with the conduct on the part of
prosecutrix he had described. In this condition of the record, it
occurs to us that proof that prosecutrix bore the general reputation
of being unchaste and had habitually engaged in acts of sexual
intercourse with others was admissible as shedding light on the
transaction. Such proof would have tended to explain the conduct of
prosecutrix on the night in question. In its absence, it would appear
that appellant’s version of the transaction might be deemed
incredible; whereas, if the jury had had such proof before them the
conclusion might have been reached that the condition of prosecutrix
resulted from a fight in which she was the aggressor. In other words,
the jury might have concluded that she sought to bestow carnal favors,
which were rejected, and that, as a result, a fight ensued in which
she received the injuries described in the testimony. In his Annotated
Penal Code, sec. 97, Mr. Branch states the rule as follows:
Relevancy is
defined to be that which conduces to the proof of a pertinent
hypothesis — a pertinent hypothesis being one which, if sustained,
would logically influence the issue. Hence it is relevant to put in
issue any circumstances which tends to make the proposition at issue
either more or less probable.”
See McGuire v. State, 10 Texas App., 127;
Lane v. State, 164 S.W. 380.
Again, in the same section, we find the
following statement of the rule:
“Whatever material facts are introduced
that tend to affect the issue, the other side has the right to deny,
contradict or explain that testimony, showing its falsity, or breaking
its force and effect in any legitimate way.”
In support of the text many authorities
are cited, among them being Lewallen v. State, 26 S.W. 832. That the
testimony supported a pertinent hypothesis seems clear. Under the
circumstances, we are constrained to hold that the matter presents
reversible error.
The judgment is reversed and the cause
remanded.
Reversed and remanded.
The foregoing opinion of the Commission of
Appeals has been examined by the Judges of the Court of Criminal
Appeals and approved by the Court.
