William Taylor v. The State, 22 Tex. Ct. App. 529

White, Presiding Judge. This appeal is from a judgment of conviction for assault, with intent to commit rape, the punishment being seven years in the penitentiary. The injured party was the daughter of appellant, and the conviction rests almost exclusively upon her uncorroborated testimony. According to her statements as a witness, appellant had ravished her first some five years prior to the date of the crime for which he was being tried, and she deposed that his crime had been repeatedly perpetrated upon her in the interval between the first and last offense.

After the testimony at the trial was closed, the defense demanded that the prosecution be required to elect the precise and specific offense for which a conviction would be claimed, and the prosecution announced that they would claim a conviction only upon the offense as laid in the indictment, to wit, the one committed on or about the twenty-seventh of December, 1885. Before her examination as a witness, defendant requested the court to have the prosecutrix tested upon her voir dire as to her competency with regard to the nature and obligations of an oath.

This was granted, the witness examined in open court, and pronounced incompetent by the judge.

Thereupon, at the request of the prosecuting attorneys, and over objection of defendant, the said prosecuting attorneys were permitted to take said witness from the court room to the private law office of one of said attorneys, that they might there instruct her properly, in the presence of the sheriff, with regard to the nature of an oath, and read and explain to her the statutes with regard to the crime of perjury and its punishment; after which the witness was again brought back into court, re-examined as to her competency, and pronounced competent by the judge, and she then testified in the case.

All of which was excepted to by defendant. Our statutes, while they declare that no person shall be disqualified from giving evidence on account of his religious opinions, or for the want of any religious belief (Bill of Rights, sec. 20; Code Crim. Proc., Art. 12), do hold as incompetent “children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligations of an oath.” (Code Crim.

Proc., Art. 730, sub-div. 2.) The method of testing the competency of such witnesses is confided to the discretion of the trial judge, and his determination of the question will not ordinarily be disturbed on appeal, unless an abuse of that discretion is apparent. (Brown v. The State, 2 Texas Ct. App., 115; Ake v. The State, 6 Texas Ct. App,, 398; Brown v. The State, Id., 286; Williams v. The State, 12 Texas Ct. App., 127; Burk v. The State, 8 Texas Ct. App., 336.) Was the mode adopted in this instance an abuse of discretion? Mr.

Wharton says: “When a child is incompetent simply for want of instruction as to the nature of an oath, the practice has been to postpone the case, so that the child might in the meanwhile be properly instructed.” (Whart. Crim. Ev., 8 ed., sec. 368, citing Rex v. White, 1 Leach, 430.) This was the English practice. As far as known, it has never been adopted in this country. On the contrary, as Judge Lewis says, in State v. Scanlan, 58 Mo., 206, such “practice has been criticised as like preparing or getting up a witness for a particular purpose.” (S. C., 1 Amer. Crim.

R., Hawley, 185.) In Indiana, where the witness on a trial for rape was a child only six years old at the time of the trial, and was testifying sixteen months after the alleged offense, the competency of the witness having been challenged, the court examined her, and not being satisfied, appointed two gentlemen who retired with the child to a private room, and after some time returned and reported to the court that in their opinion her testimony ought to be heard, but received with great allowance, whereupon she was allowed to testify, over defendant’s objections, it was held that for this action of the court the defendant was entitled to a new trial. (Simpson v.

The State, 31 Ind., 90.) In Alabama, where the question was “whether the circuit court was authorized to arrive at a conclusion respecting the admission or rejection of an infant witness from a private examination after a public examination in court had resulted in the exclusion of the witness in consequence of an apparent defect of knowlege with respect to the obligations of an'oath,” it was held that it is the court, and not the judge as an individual, which is to determine the competency of a witness; and therefore the examination of the competency of the witness must be made at the trial and in the presence of the prisoner and his counsel.

To admit such a witness upon a private examination by the judge, is erroneous. Judge Goldthwaite says: “It may be objected it is scarcely possible that an infant of such tender years can be capable of satisfactorily answering questions amidst the bustle and confusion of a court house; but certainly the consequences would be alarming if the admission of such a witness might be effected through the medium of a private examination; and more so when one made in public had proved to be unsatisfactory.” (State v. Morea, 2 Ala., N. S., 275.) And so in The People v.

Welsh, 63 Cal., 167, it is said “that a defendant in a criminal case is entitled to have the question of the competency of a presumably incompetent witness heard and determined in his presence, and on his trial before the court and jury.” We are clearly of opinion that the procedure here complained of was error.

During the examination of the prosecutrix as a witness, objection was made and exception reserved by defendant when ever the witness was permitted to testify as to other criminal acts of a like character, by the defendant, to the one charged by the indictment to have been committed on or about the twenty-seventh of December, 1885. Wherever and whenever motive and intent become important questions in the trial of a case, evidence of similar acts or conduct in other instances is admis2 sible. “ It is the animus with which

an act is done which constitutes its criminality. There must be a joint union of act and intention in every crime, and the intention, like the act, may be proved by direct or indirect evidence of the circumstances connected with the crime. Hence the conduct of a party before and after the principal fact in issue is admissible, not as part of the res gestos, but as a circumstance connected with the act indicating the guilty intent.” (People v. Welsh, 63 Cal., 167.) It is permissible, where motive is the important question, to prove other transactions of a similar character. (Street v. The State, 7 Texas Ct.

App., 5; Heard v. The State, 9 Texas Ct. App., 1; Cameron v. The State, Id., 332; Williamson v. The State, 13 Texas Ct. App., 514; Jones v. The State, 14 Texas Ct. App., 85; Holmes v. The State, 20 Texas Ct. App., 509.) But where, however, this is permissible, it is always important that the charge of the court should properly limit and restrict the jury, in their consideration of such testimony, exclusively to the purposes of its admission, lest they should give it unwarranted weight as evidence proving the main fact. (Kelley v. The State, 18 Texas Ct. App., 262; Holmes v. The State, 20 Texas Ct.

App., 509; Alexander v. The State, 21 Texas Ct. App., 407.) In the otherwise unexceptionable charge of the court we find that this important matter was entirely overlooked. It was, however, not excepted to on that ground, but the error is scarcely cured by the fact that in its application of the law to the facts the jury were restricted in their findings by the charge expressly and specifically to a rape committed on or about the twenty-seventh day of December, because, under express provision of the code, a prosecution for rape must be commenced within one year and not afterward. (Code Crim.

Proc., Art. 198.) In view of this fact, it was most important—in fact, imperative—that the evidence of acts barred by limitation should be strictly confined to the legitimate purposes for which it was alone admissible and entitled to be considered. A failure to so restrict it is radical error of omission in the charge. (See Davidson v. The State, ante, 372.) It is a general rule that in the direct examination of a witness he shall not be asked leading questions, or, in other words, questions formed in such a manner as to suggest to the witness the answers desired of him.

To this rule, however, there are a few exceptions. “Exceptions are recognized where the witnesses áre unwilling; where they are of weak memory, and where such a mode of questioning is logically consistent with a fair and honest development of the case.” (Whart. Crim. Ev., 8 ed., sec. 454a.) In Mann v. The State, 44 Texas, 642, it was held that it is in the discretion of the district court to allow direct questions to a witness who shows an unwillingness to testify.

In this case it is shown that the witness, on the examining trial, had positively refused to testify, and had to be confined in jail before she would consent to testify. In view of that fact and the further fact that the witness does not appear to be at all bright, we can not say that the court erred in permitting the prosecution on direct examination to ask leading questions. As charged in the indictment, the rape is alleged to have been committed by force and threats. It is, to our minds, left very uncertain from the evidence whether any “force” was used.

The prosecutrix testifies that she was struck over the head with a pistol by defendant, but whether during the transaction, or before on the same night, or at some other time, is not made manifest. It would rather seem that at the particular time whatever offense defendant committed was committed through means of threats, unaccompanied by force, or attemptéd force, constituting an assault. Appellant was found guilty of assault with intent to commit rape; which offense can only be established by proof of force or attempted force.

Proof of threats as a means resorted to in order to accomplish sexual intercourse with a female against her will will not, when unaccompanied by force, authorize a conviction for assault with intent to rape, but would only authorize a conviction for an attempt to rape. (Burney v. The State, 21 Texas Ct. App., 565.) We call attention to this matter in view of another trial, where the defendant, having been acquitted of the higher offense of rape, is only liable to be tried for a lesser degree. Opinion delivered December 4, 1886. For the errors we have discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.