Court of Criminal Appeals of Texas, 1894

Lewallen v. State

Court of Criminal Appeals of Texas · Decided May 30, 1894 · Davidson

26 S.W. 832; 33 Tex. Crim. 412; 1894 Tex. Crim. App. LEXIS 132 (South Western Reporter)

Counsel

Smith Wear, for appellant. — The court erred in not permitting the defendant to prove by the witness S. Lewallen, that shortly after the alleged difficulty, and before the flight of the defendant, witness told the defendant that a mob was being formed to hang him if he was caught, and advised defendant to flee, etc. The State, on the trial of this cause, having put stress upon the fact of flight, the appellant should have been permitted to prove that his flight was occasioned by a warning that his life was menaced by a mob, and the witness S. Lewallen having conveyed such information to appellant, it was competent to prove the fact by him. Appellant offered to prove by the witness S. Lewallen, that shortly after the commission of the alleged offense, and before the flight of the appellant, that said S. Lewallen had told appellant that a mob was being formed to hang him, and advised appellant to flee. That he had seen Aleck Tucker and John Cox on the night of the difficulty, and that they had both told him that a mob was being organized, and if appellant was caught he would be hung. Arnold v. The State, 9 Texas Crim. App., 435. The court erred in not permitting the defendant to testify, when upon the stand, in answer to the following questions: "State whether or not it was your intention to have carnal knowledge of Mrs. J.C. Harris without her consent, and by force, at the time and place alleged and shown, or whether or not it was your intention to have carnal knowledge of her with her consent, if an opportunity offered, and to desist if she objected or failed to consent," to which question the witness would have answered that it was not his intention or purpose to have carnal knowledge of the said Mrs. J.C. Harris, either by force or against her consent; that his purpose was, if he could, to have carnal knowledge of her with her consent. The question of intent in this case being material to the issue, appellant should have been permitted to testify as to his intent and purpose. Berry v. The State, 30 Texas Crim. App., 423; 1 Thomp. on Trials, secs. 383, 648. R.L. Henry, Assistant Attorney-General, for the State.

Opinion of the Court

DAVIDSON, Judge.

Conviction was had for assault with intent to commit the crime of rape, under an indictment charging that offense. The State proved flight on the part of appellant as a circumstance against him. Explanatory of this occurrence he offered to prove by his father, that “shortly after the alleged commission of the offense, and before the flight of the defendant,” he informed “defendant that a mob was being formed to hang him if he was caught, and this was the reason the witness advised him to flee;” and witness further “told defendant, that if he wanted to save himself from the mob he had better run away; that witness had seen Aleck Tucker and John Cox on the night of the difficulty, and after it had occurred, and before defendant had left the county, and they both told him a mob was being organized, and if defendant was caught he would be hung; and witness told the same to defendant and advised him to flee.” This evidence, on objection of the State, was rejected. This was error. The bill of exceptions is signed by the court with the qualification, that “before the evidence was offered defendant had testified, and the court held that it was competent for the defendant to state his motive in evading arrest. Counsel for defendant declined to make his proof by defendant why he evaded arrest.” It was not incumbent on appellant to make this proof by any particular witness. He could prove it by any witness who knew the facts, whether it was himself, his father, or another. That he did not testify in this regard did not constitute a valid reason for rejecting the evidence when offered through another witness. The evidence was admissible. Arnold v. The State, 9 Texas Crim. App., 435. It is always permissible for the accused to rebut any criminative fact sought to be proved against him, and the court is not authorized to reject the evidence of one witness because another witness did not testify to the same fact or state of facts.

Appellant offered to testify that his intention was to have sexual intercourse with the prosecutrix with her consent, and not by force and against her consent. This was also excluded, which was error. Berry v. The State, 30 Texas Crim. App., 423, and cited authorities. We are of opinion the charge, viewed as a whole, is sufficient.

The judgment is reversed and cause remanded.

Beversed and remanded.

Judges all present and concurring.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.