H. H. Lawson v. The State, 17 Tex. Ct. App. 292

Will sou, Judge. I. It is no valid objection to the indictment that it charges, in the same count, the commission of the rape by the three several means named in the statute, force, threats and fraud. Either of the three modes of obtaining carnal knowledge of a female without her consent constitutes rape, and the rape may be accomplished by all three of the modes combined. (Penal Code, art. 528.) Various means used, in committing an offense, when alleged conjunctively, do not make the indictment duplicitous. (Whart. Cr. Pl. & Prac., § 254; Whart. Cr. Ev., § 134; Mayo v. The State, 7 Texas Ct. App., 342.) II.

It is too well settled in this State to admit of question or discussion that, while the general character for chastity of the alleged injured female may be shown to be bad, not in justification of the offense, but as weakening the evidence of the prosecution as to want of consent, yet, it is not admissible to prove particular instances of unchastity, except with the defendant. (Pefferling v. The State, 40 Texas, 486; Dorsey v. The State, 1 Texas Ct. App., 33; Rogers v. The State, Id., 187; Jenkins v. The State, Id., 346; Mayo v. The State, 7 Texas Ct.

App., 342.) It was therefore not error to reject the evidence offered by the defendant to prove that Lucinda Lawson had, prior to the alleged rape, been guilty of illicit carnal intercourse with another man. Counsel for appellant argue plausibly that such testimony should be admissible in mitigation of the punishment, if for no other reason. 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 in our own State, are the other way. III.

In prosecutions of this character, where the fate of the accused depends solely upon the testimony of the alleged injured female, every reasonable test should be applied to her integrity. While no unreasonable suspicion should be indulged against her on trial, courts and juries should be cautious in scrutinizing her testimony, and guarding themselves from sympathy on her behalf. “ Hence, the failure to make outcry, or call for aid when it might have been readily obtained, or within reasonable time to discover the offense after an opportunity to do so, are circumstances tending to discredit her testimony.

But if the absence of these circumstances tends to raise the presumption that her testimony is false or feigned, proof of them repels the suspicion which their absence raises. It has, therefore, been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence.

But proof of the particulars of such complaint, and the detailed statement of the alleged facts and circumstances connected with it, cannot be admitted as original evidence to prove the truth of the statements testified to by the injured party, or to establish the charge made against the accused party. Their admissibility on behalf of the State is limited to the purpose, in rebuttal, of supporting the veracity and establishing the accuracy of the testimony of the prosecuting witness.” (Pefferling v. The State, 40 Texas, 486; 1 Whart. Cr.

Law, §§ 565, 566.) In this case, the prosecutrix, upon her examination in chief, was allowed to state not only that she had made complaint of the outrage committed upon her, but also to state the particulars and details of such complaint. This was an irregularity which, if objected to, the learned trial judge would not have countenanced, but no exceptions were interposed by the defendant, and the error is not before us for revision. It appears from the testimony of the prosecutrix that the rape occurred in defendant’s com field, not far from his house, and in the daytime.

Her sister was near to the place at the time, within calling distance. When the defendant caught hold of her she says she cried out twice before he threw her down, but did not cry out any more. She does not give any reason for not continuing to cry out, except that defendant choked her after he got her down upon the ground. Her sister, who was not far off at the time, testified that she beard no outcry, and no noise of any kind.

A witness who was in an adjoining field, however, testified that he heard the prosecutrix scream twice in defendant’s field about the time and place the rape is said to have been committed, and soon afterwards saw her running toward the house. When she reached home, where her mother and sister were, she said nothing to them about the occurrence in the field, but went with her sister to a neighbor’s to pick cotton, and after she had been at this neighbor’s house several hours she told the lady of the house that defendant had attempted to rape her.

She said nothing to her mother about it, until questioned in regard thereto. She testified that when defendant choked her, he marked her neck with his hand and hurt her, and she carried the mark for several days, lío witness testifies, however, to having seen any marks or indications of violence whatever upon her person. She was about eighteen years old at the time of the alleged rape, but the record does not disclose anything as to her size, or strength, nor as to the age or strength of the defendant.

On the'fifth day after the alleged rape, the prosecutrix went with the neighbor lady above referred to, to the corn field and pointed out the place where she said the rape had been committed, and this lady testified, as also did her husband, who also examined the place, that the grass and weeds were mashed down, and that a corn stalk had been pulled up, and that there were other indications that persons had been lying upon the ground. This evidence was objected to by the defendant, bat the bill of exception in the record does not disclose the ground of the objection.

It seems to have been admitted as evidence to corroborate the testimony of the prosecutrix. We are of the opinion that it should have been rejected in view of the peculiar circumstances of this case, and because it was too remote and uncertain in its character to have any legitimate bearing upon the issue, while it was well calculated to improperly influence the minds of the jury adversely to the defendant.

If the ground had been examined recently after the alleged crime, and had presented the indications mentioned, such testimony would perhaps be admissible, but after the lapse of so long a time, and when ample opportunities had been afforded designing persons to fabricate these indications, it was of too questionable and dangerous a character to be thrown into the scales of justice against the life and liberty of a citizen.

It is the theory of the defense, and there is some evidence to support it, that the case against the defendant originated in the hatred and malice of the prosecutrix against him, and that the whole story of her outrage by him is false and fabricated. She discloses in her own testimony that, prior to this alleged outrage, she entertained bad feelings toward him; she charged him with being unkind to her, and with treating her badly and tyrannically. And she says that he was mad at her when he committed the outrage upon her.

In view of her acknowledged unfilial feelings toward him; in view of the enormity and unnaturalness of the crime she charged against him; in view of the fact that she did not at once disclose to her mother and sister the fact of her injury; in view of the suspicion cast upon her testimony by the contradictory evidence of her mother and sister, it was incumbent upon the prosecution to produce every fact and circumstance in evidence, however slight, which would corroborate her statements. But this was not done.

It was in the power of the prosecution to corroborate her statement, if it was true, that the marks of the choking were upon her neck. She says these marks remained for sever tl days. Such corroboration would have been more cogent than any that was produced, because these marks could not easily have bf an fabricated. Their presence would have been strong evidence th it she had been the victim of violence, and yet not a single witner is asked about them, so far as the record shows. Furthermore, .10 marks whatever of violence were observed] upon her person by ar / one.

It is reasonable to suppose that f sh^ bad been ravished as claimed,— deflowered of her maidenhoo? by violence,— her perso . and clothing would have exhibited some piioj •of it, and yet the re ;ord discloses no such evidence, and no attem of ■ ■even to produce it, As the case is p1 esented to us, we cannot sanction the conviction and in view of all the surroundings of the case, we think the tria Í court erred in refl sing the defendant’s motion for a new trial. j There are other errors complained of by ■‘he defendant, but the) r are not such as are likely to occur on aponer trial, even if they Ije errors, and we have not therefore giw , them consideration. j Because the court erred in admit'-‘ag illegal evidence, and becaus ¡, in our opinion, the verdict is rat supported by the evidence, t| e judgment is reve-sed and the ~¡ause is remanded. j Reversed and remandedl [Opinion delivered December 10, 1884]