Logan v. State (66 Tex. Crim. 506, 1912)

HARPER, Judge.

Appellant was indicted, charged with the offense of rape upon the person of Ellen Groom, a girl alleged to be under fifteen years of age; he was adjudged guilty, and his punishment assessed at five years confinement in the penitentiary.

1. Ellen Groom, the prosecuting witness, when first carried before the grand jury, declined to testify who it was had carnal intercourse with her. She had declined to tell her mother, but at the time she was in such an advanced state of pregnancy it was known she had had sexual intercourse with someone. She was carried before the district judge, who informed her that unless she would tell with whom she had sexual intercourse he would be compelled to send her to jail. She then testified before the grand jury that appellant was the person guilty of the offense. On the trial of the case she testified that she had met appellant several times; that she had a conversation with him at the fence between their homes five months prior to the act of intercourse, and that during the day on which the intercourse took place that night she talked with him at Milam’s store, where he was clerking, and agreed to meet him that night at the branch back of her home. She further testified: “On the night of this intercourse—the house in which I lived consisted of two rooms, the partition between the two rooms being a curtain cutting off the kitchen in one end, and a bedroom in the other end of the house. My mother and I slept in one bed, my sister on a pallet on the floor and my three brothers on the other bed. The night was cool, or cold, and we had a fire. I had gone to bed, and as was my usual custom, had gone to sleep. After awhile I wakened, as was also my custom after sleeping awhile, and got up and dressed while my mother and the 'other members of the family were asleep. I then went out the door and down to the branch and there met the defendant. I remained there only a few minutes with him and had the act of intercourse, and then returned to the house, and went again to bed. The others were still asleep when I returned to the house. The time of this occurrence was in cool weather, or, in cold weather, I think, and the night was dark. When I returned to the house I got back in the bed with my mother.” That this was the only act of intercourse she ever had with appellant, and that it occurred the latter part of April 'or first of May prior to the birth of her child in January. On cross-examination she could not fix the time definitely when it o&urred, saying: “This occurrence was either last year or year before last. Q. You told us a while ago that it was last year or year before last; can’t you be a little more definite and fix the time better than that? A. It was last year or year before last. Q. You think it was year before last, then? A. Yes, sir. Q. Then you fix it at that time? Do you remember whether it was in the spring of the year? A. It was in cool weather, I think. Q. Cold and cool weather might mean different things; can you be more definite than that ? A. It was in .the winter, I think.”

Mrs. Groom testified to the age of her daughter, and testified that she was under fifteen years of age at the date of the alleged rape. She testified she had never seen defendant with her daughter, and that defendant had never been at her home. That she had seen him standing over at his home looking towards her place smiling, and her daughter would be looking over towards his home. On cross-examination she testified: “I do not recall that defendant ever kept company with my daughter, Ellen, before the trouble complained of, and I never saw anything between them other than what I have dedescribed as his smiling through the window, nor was defendant ever in my house, so far as my knowledge goes, either before or after the indictment was returned against him. My daughter never told me before the finding of the indictment that defendant was the father of her child, and I could never get anything out of her about it.”

Appellant testified that he was twenty-seven years of age, a member of the church, and had never been charged with an offense prior to this time. He further testified.

“I have known Ellen Groom a year or two, but have had no acquaintance. with her other than to see her occasionally going about town. I never had a conversation with her at any time that I know of, and have never been with her or gone with her anywhere, to a party or other place.

“I have worked at the Milam & Company store for about five years. I do not remember to have ever seen Ellen Groom in the Milam store, and I have never had a conversation with her in the Milam store at any time, as I now remember. She, of course, might have been in the store with her mother, or in some department of the store, but I do not recall having seen her there at any time, and I am sure that if I had seen and talked to her in the store I would have remembered it, and I did not meet her and have a talk with her at any time in the store, as detailed by her in her testimony in this case. If she was ever there I never saw her. I never at any time had a conversation with her at the fence at her home or at my home] as detailed and referred to by her in her testimony, and I am positive in my statement that I had no conversation with her at the fence at any time. In passing to and fro about my home and in going and returning home I have seen Ellen Groom in and about her yard, and about the place somewhere, but I have never had any communication or conversation with her, other than perhaps a salutation in passing, or passing the time of day, as we call it.

“I have heard the testimony of Ellen Groom that on a certain night, about the premises, in the branch I had carnal intercourse with her. The statement is not true. I never in my life had carnal intercourse with her, and never at any time had any conversation with her relating to such a thing. I have never been thrown with her under any circumstances whatever.”

Mrs. Logan testified that two days after her son was indicted she went to the home of Mrs. Groom, who met her at the gate crying, saying that appellant was not guilty, and said that Ellen said he was not guilty. That they went' in the house and Mrs. Groom spoke to her about some of the school boys, and asked if witness knew the Darnaby boy, and if witness thought the Darnaby boy was old enough to get a kid, when witness replied she did not know the boy. Witness says Mrs. Groom told her she wanted the case thrown out of court, and that prosecuting witness spoke up and said appellant was not guilty. Witness says she went to Mrs. Groom’s again a few days later, with Mrs. Eretwell, and that Mrs. Groom told her Ellen had never told her who was guilty, and on one of the trips Mrs. Groom had told her when they were planning who to lay it on,