Appellant was convicted of rape, and his punishment assessed at imprisonment in the penitentiary for life; hence this appeal.
The indictment contained four counts, — the first for incest and the last for rape. The second and third counts were eliminated, and the case tried on the first and fourth counts, and the jury found him guilty, under the fourth count, for rape.
The proof on the part of the State showed that the prosecutrix, Pearl Owens, was the daughter of appellant, Jay Owens, and she was at the time of the alleged offense about 14 years of age. Her father lived on a farm in the country, and his family consisted of his wife, himself, and several children, among whom were the prosecutrix, Pearl Owens, and a son named Sam Owens. The prosecutrix testified to a number of acts of intercourse between her father and herself, stating that she was coerced to consent to copulate with him; that he threatened to kill her if she did not consent; that she was afraid of him. Prosecutrix testified specifically to an act of intercourse between Christmas and New Year of 1894. She said that it was in 1894 or 1895, she did not know which, but she was certain it was the time that Dorsey Taylor was living at her father's and working there. She also stated that her father had had intercourse with her about fifteen times before that. She testified to several particular occasions, — one time when he took her out of the field into the woods. The Christmas she alludes to she states that she slept in the same room with her father and mother; that her mother was in the habit of going out and getting breakfast, and early one morning her mother went out in the cook room to get breakfast; that she was in her bed, and her father called her to come and get in bed with him; that she came, and he made her lie down on his bed with him, and that he copulated with her; that he made her lay still; that he pulled her hair and choked her; that after he got through she got up, and went and told her mother about it. Her *Page 396 brother Sam corroborates her as to this transaction. He also says that it was the time Dorsey Taylor was there. Dorsey Taylor was introduced, and testified that he was not there during Christmas, 1894 or 1895; that he came to Jay Owens' place in December of 1893, was there during Christmas, 1893, and remained there until March, 1894, when he went elsewhere to work, and he had not lived at Jay Owens' since; that he came by there once in the summer of 1894, on his way to Coleman County, and stayed all night there. Other witnesses testified for the defendant, and their evidence is to the effect that Dorsey Taylor was not at Jay Owens' during Christmas, 1894, and the early part of 1895. The testimony to this effect on the part of the defendant was so strong that the State admitted that Dorsey Taylor was not at Jay Owens' the Christmas of 1894, but was there the Christmas of 1893. The State then placed the prosecutrix back on the stand, and she testified that appellant was arrested in the summer of 1895, and that the act of intercourse about which she testified was the Christmas before that, which was the Christmas of 1894. The indictment was filed on the 10th of July, 1895; and the question of the date of the alleged offense becomes material, in view of the foregoing testimony on the point and the charge of the court on that subject.
On this point the court instructed the jury as follows: "The State has elected to rely for a conviction in this case upon the offense claimed by the State to have been committed by the defendant at his home in said Williamson County between December 25, 1894, and January 1, 1895. You are therefore instructed that the State is confined to said transaction for a conviction in this case, and the evidence introduced before you as to the commission, or attempted commission, of the offense of rape by the defendant upon any other occasion than that so relied upon by the State, which is between December 25, 1894, and January 1, 1895, will only be considered by you, together with all the other circumstances in the case, in determining the sufficiency of the force and threats used," etc. And again: "You can not convict this defendant in this case, if at all, for any prosecution except that relied on by the State for a conviction, and claimed to have occurred between December 25, 1894, and January 1, 1895." And in another place: "The indictment in this case was filed in this court on July 10, 1895. Now, if you believe the transaction testified to by the witnesses Pearl and Sam Owens, as having occurred at defendant's home in Williamson County, on the date between December 25, 1894, and January 1, 1895, did occur as testified by said witnesses, but you further find that such transaction occurred between December 25, 1893, and January 1, 1894, instead of between December 25, 1894, and January 1, 1895, or if you have a reasonable doubt" on this subject, etc., "you will acquit the defendant." It is contended by appellant that these charges were on the weight of the testimony. For instance, it is contended by appellant that it was incompetent for the court to inform the jury that the State relied for a conviction upon the offense claimed to have been committed by the defendant, at his home in Williamson *Page 397 County, between December 25, 1894, and January 1, 1895; that same was a suggestion to the jury that the State's witnesses had unquestionably testified to that specific time, and was so a charge upon the weight of testimony. And appellant especially urges that it was improper for the court to tell the jury that the witnesses Pearl Owens and Sam Owens testified that the offense occurred at defendant's home in Williamson County between December 25, 1894, and January 1, 1895; that this question of date was the very matter in issue, and, when the evidence left it uncertain as to the date fixed by these witnesses, their own testimony was ambiguous, and that it was improper for the court to tell the jury that they had testified to that certain day. In view of the fact that these witnesses, especially the prosecutrix, testified positively that the transaction about which they testified occurred at the time when Dorsey Taylor was there, and they used this circumstance to fix the date, and that they were otherwise uncertain when it did occur, it would seem that the jury should have been left untrammeled by any suggestions on the part of the court as to what they had testified to on that subject. If the court had merely charged the jury, in general terms, if they believed beyond a reasonable doubt that appellant had had carnal intercourse by force with prosecutrix, within a year next before the finding of the indictment, to find him guilty, and if, on the contrary, they did not believe beyond a reasonable doubt that said act of intercourse did occur within a year next before the finding of the indictment, to find him not guilty, this would have been all that the court would have been required to do on this subject. When the witness was apparently uncertain about the date, and only identified the time by other circumstances, the jury should not have been informed that the prosecutrix and Sam Owens had testified to a particular date. We think this was infringing on the province of the jury. The charges given were excepted to, and a charge was requested on this subject free from the vice contained in the court's charge.
Appellant also complains that the court in its charge told the jury that "there has been evidence introduce in this case to show that the defendant raped the said Pearl Owens at various dates and places." It is urged by (appellant that this was a charge upon the weight of the testimony. He claims in this respect that, even if it be conceded that the act of intercourse is proven, the proof still left exceedingly doubtful other elements essential to constitute rape; and that the court, under the circumstances of the case, should not even have suggested to the jury what the evidence tended to prove, much less to tell them that there was evidence in the case to show that the defendant raped said Pearl Owens at various dates and places. To our minds, this instruction was very suggestive to the jury of the view the court entertained of the testimony, and we believe it was calculated to influence the jury, as imparting to them the view of the court on the subject.
When the witness Warren Moss was on the stand, for the State, over the appellant's objection, the State was permitted to prove by him that *Page 398 on one occasion, in the presence of Pearl and the other members of the family, defendant stated that he did not care if he (witness) "f_____d every one of them." His testimony was objected to as immaterial, irrrelevant, and calculated to prejudice the minds of the jury against the defendant, without in any manner tending to prove the crime of rape. This occasion does not appear to have had anything whatever to do with the offense alleged against appellant the conversation is not shown to have been contemporaneous in point of time. We fail to see what bearing it had upon either the charge of rape or incest. It was calculated to show that appellant was possessed of a beastly, brutish mind, and that he was willing to see his daughter prostituted; but this would not tend to show that he had raped her, or even that he had had intercourse with her, but it was of a character to prejudice appellant before the jury.
Sam Queen was introduced as a witness, and the State was permitted to prove by him that he had seen appellant whip his children. On one occasion he saw him knock his little boy Walter off of the haystack, and jump on him, and stamp his chest in with his boot-heel. Now, it was competent for the State to show, by any legitimate testimony, that appellant mistreated the prosecutrix, and that he was in the habit of whipping her, and treating her cruelly, as bearing on the issue of force; that is, indicating his authority and power over his daughter to compel her, by force and threats, to submit to carnal intercourse with him. Possibly it might have been permissible to prove that appellant was in the habit of treating his children cruelly in her presence, or within her knowledge; but this testimony appears to be of an isolated character. She was not present when appellant knocked his little boy Walter off of the haystack, and stamped his chest in with his boot-heel, or to have known of that circumstance, and, without some such testimony of knowledege on her part, we fail to see what relevancy or pertinency it had. In a case of this character, the trial court should be careful in the admission of any but legitimate evidence, as it can rarely happen that a jury requires any outside incentive to enable them to properly discharge their duty. Testimony of this character, having no relevancy to the case, is likely to inflame the minds of the jury against appellant, to regard him as a brute, and that he ought to be punished on general principles; and, if the case is otherwise weak, such testimony is liable to turn the scale against an innocent man.
We would remark that the circumstances of this case are rather peculiar. If the testimony of the prosecutrix and her brother Sam is to be believed, unquestionably appellant was in the habit of having intercourse with the prosecutrix, his daughter. This continued for a length of time, and with the knowledge of the mother of the prosecutrix. The question of force vel non was an important in the case. The charge of the court in this respect should have been carefully guarded, and the jury should also have been specifically instructed that, if prosecutrix consented to the acts of intercourse, it would not be rape. The jury were thoroughly instructed as to the elements constituting rape, and then they *Page 399 were charged with reference to the State's case; but they were nowhere told, on behalf of defendant, that they must be satisfied beyond a reasonable doubt that appellant, by force and threats, compelled her to submit to carnal intercourse with him; that she was required to put forth her utmost resistance to prevent him from doing so, considering the relative size and strength of the parties, the conditions surrounding them at the time, and other circumstances of the case; and, moreover, if they believed that the prosecutrix consented to have carnal intercourse with appellant, or if they entertained a reasonable doubt as to whether or not she did consent, that then they should acquit appellant. Under the circumstances of this case, we think such a charge was imperatively called for and should have been given by the court, in order to adequately guard the rights of appellant. For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
HURT, Presiding Judge, absent.