Conviction for incest; punishment ten years in the penitentiary.
In a sense this is a companion case to Clarence Holladay v. State, No. 18283 (reported on page 588 of this volume), wherein this same appellant was charged and convicted with a similar offense, opinion this day handed down. In the case before us appellant was charged with incest with another of his daughters, Clarence, a girl fourteen years of age, who bore a child in September, 1935, and who testified that appellant was the father of said child, and to his acts of intercourse with her on four separate occasions. The child of this daughter of appellant was born in a maternity home in Houston, one week before the child of her sister who was also an inmate *Page 593 of said home at the time. Both of these girls testified on the trial of this case as did also a twelve year old daughter of appellant, who said she was in a position where she saw her father on top of prosecuting witness in this case. The evidence is amply sufficient.
According to the testimony of Mrs. Donnelly, a sister of appellant's wife, who gave evidence for the State, — the family of appellant lived in a dilapidated old house in a remote section of San Jacinto County, and the family had little food when this witness went out to see them about the time the pregnancy of these two girls was discovered. Appellant had gone somewhere in Mississippi or Louisiana. Witness went with others to get Mrs. Holladay to come with her family to the home of Mrs. Young, a half sister of Mrs. Holladay. Soon after the family went to Mrs. Young's home Myrtle, sixteen years of age, and Clarence, who was then nearly fourteen years of age, — and both expectant mothers, — were sent to the maternity home referred to. No suggestion of any reason for the two girls ascribing the paternity of their children to appellant appears in the record aside from the fact that it was true. Nor does the record suggest any reason why the twelve year old girl should testify as she did other than the fact that she was telling the truth.
The fact that this little girl knew of her father's treatment of her older sisters was not known until after the other girl had gone to the maternity home. The younger girl made a statement before a justice of the peace, who was a witness, and gave in detail the facts accompanying her appearance before him in the statement she then made. Reviewing the testimony, we find an exceedingly weak effort on the part of appellant to attack the reputation of his younger daughter, Clarence, the prosecutrix in this case.
We think the trial court correct in refusing to undertake to compel the matron of the maternity home, who had the girls in charge, to allow appellant and his counsel an interview with the girls out of the presence of said matron. The girls had been recently confined, and were weak and not well, and, as the matron testified, were easily upset. She said she was perfectly willing for appellant and his counsel to interview the girls in her presence but not otherwise. No reason is assigned why a satisfactory interview could not be had with the witnesses in the presence of the matron.
We see no abuse of the discretion of the trial court in refusing *Page 594 to exclude State Ranger Davenport from the court room during the trial.
Manifestly a bill of exceptions is insufficient which complains that appellant was not allowed to ask prosecuting witness if she had not visited a certain house, — appellant stating that he expected to show that bad girls and boys were there. We have given the exact language of the bill.
Mrs. Holladay, appellant's wife, testified for the defense that the relations between herself and husband and Mrs. Young, a half sister of the witness, who was a witness for the State, — were unfriendly. Appellant sought to support her affirmation of this fact by relating some circumstances that occurred some nine years before, when she would have said that a relative of Mrs. Young had been taken in the act of adultery with some man, and appellant refused to join a mob to go and handle the man. We think the court properly excluded the details of the occurrence.
We have gone carefully over appellant's bills of exception 6, 7, 8, 9, 10, 11, 12 and 13, many of which are subject to the criticism that the bills themselves do not contain facts which would demonstrate any error. We see no merit in any of the bills calling for any discussion on our part.
The judgment will be affirmed.
Affirmed.