
    HAGGART v. STATE.
    (No. 3645.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Criminal Law @==>369 — Evidence—Other Offenses — Rape.
    In a prosecution for rape on a child under 15, her evidence of an act of intercourse prior to that charged, although committed more than a year before the institution of the prosecution, so that prosecution for it would have been barred by limitation, was admissible as evidence showing the relations of the parties, bearing on the probability of the commission of the act charged, under the rule that evidence of one crime is admissible to prove another, when they are so related that the inference follows.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. <§= 369.]
    2. Rape <§=44 — Evidence — Defendant’s Treatment of Prosecutrix.
    In a prosecution for rape on a girl under 15, whom defendant was keeping in his home for her father, defendant was properly allowed to show that all the time she was with him he gave her the tenderest care and treated her as he would his own child.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 63; Dec. Dig. <S=>44.]
    3. Criminal Daw <§=>369 — Evidence—Other Offenses — Rape.
    In a prosecution for rape, evidence of an act of intercourse prior to that charged, tending to show the relations of the parties and the probability of the commission of the offense, could be considered only as bearing on the probability of the commission of the act charged, since a conviction could be had only for such act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. <@=>369.]
    4. Criminal Law <@=>369 — Evidence—Other Offenses — Rape on Another.
    In a prosecution for rape on a 13 year old girl, testimony that defendant had told a witness that he had had intercourse with a child of 11, and that it was surprising how young a girl a man could have intercourse with, was inadmissible, but would not have been had prosecutrix been of the age mentioned, or defendant had used language indicating that he referred to her.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822 — 824 ; Dec. Dig. <§~~> 369.]
    6. Criminal Law <@=>956 — Motion for New Trial — Prejudice of Jurors.
    Where, on motion for a new trial, affidavits are presented tending to show prejudice and prior opinions of jurors as to the guilt of accused, evidence on the hearing should disprove such affidavits conclusively to justify a refusal of a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. <§=> 986.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Frank I-Iaggart was convicted of rape, and he appeals.
    Reversed and remanded.
    Reeder & Dooley, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and Ms punishment assessed at 99 years’ confinement in the state penitentiary.

The facts would show that appellant and O. M. Bowers were engineers on the Ft. Worth' & Denver Railroad. Mr. Bowers’ wife dying several years ago, he married again, and, the relations between his second wife and little daughter Helen not being pleasant, he placed her with appellant, who agreed to care for her, and the evidence would show that, in so far as keeping her in school, feeding and clothing her, his attention was all that could be desired. At the time of the alleged rape, having then been,an inmate of appellant’s home for some seven years, Helen testifies that, prior to the first act. of intercourse, appellant had fondled her person, etc. She testified that the first time appellant ever had carnal intercourse with her was on Thursday before school began in September, 1913, and that on that occasion he picked her up in his arms and carried her into a bedroom and had intercourse with her on that occasion; that he had intercourse' with her on a number of occasions after that time, but she was not able to fix any dates, except the last act of intercourse, which she says took place about the 15th day of May, 1914, just after school closed. The only two dates she undertakes to fix is just before school opened in the fall of 1913 and just after school closed in the spring of 1914, but she says it occurred on several other occasions, the dates of which she has nothing to tie her memory, but these two she is specific about. It will be noticed that the entire period testified in regard to covers a period of only about eight or nine months. The indictment in tMs case is based on the last act of intercourse, which is alleged to have occurred about the 15th day of May, 1914.

The indictment was not returned until March 25, 1915. However, the prosecution was instituted by the filing of a complaint some time prior to this time, apparently in December, 1914, shortly after Helen left the home of appellant and returned to her father’s home.

The first question presented by appellant is that although this court had held in the case of Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, that, in a case of rape of a girl under 15 years of age, acts of intimacy of the person committing the offense on a young girl might be shown (even other acts of intercourse), as tending to show the relations existing, yet, as the first act testified to was barred by limitation, it was inadmissible. In that case we reviewed the authorities in this state and in other states, and held that the views of Judge Hurt, announced in Sharp v. State, 15 Tex. App. 171, correctly announced the true rule of law. He held:

. “The next question presented for a determination is this: ‘Were former threats against the girls, violent and brutal assaults and batteries, which tended to subjugate the wills of the girls to that of the appellant, admissible?’ Upon the clearest principles of right and justice, as well as by that provision of the Code which expressly authorizes the jury to look to and consider health and strength, and all other circumstances of the case. Law should be founded upon reason and common sense. Would any rational man believe that it would require the same character of force or threats to overcome resistance, or produce just cause for fear of death or great bodily harm, in a case in which the defendant had, by a course of brutal terrorism, completely subjugated the will of his victim, that it would in a case where the parties were on something like an equal footing — a case in which such control had not been acquired? In the cases at bar the girls were very young (one being only 13 years old), and for days and months they had been the subjects, not only of threats, but of the most brutal treatment, especially the younger girl, Amanda. Can it be questioned that, by such treatment, the will of this girl, yea, of either, may not have been effectually crushed, and her acts made to conform to the defendant’s commands, unaccompanied by either force or threats? We are of the opinion that the former conduct of the defendant toward these girls was properly admitted in evidence.”

It Is true our decisions had not always been harmonious on this question, but after full investigation we arrived at the conclusion that:

While, “as a general rule, evidence is not admissible to show that the accused has committed a crime wholly distinct from and independent of that for which he is on trial_, but there are cases in which evidence of other like offenses by the defendant is relevant and admissible. If several crimes are so intermingled, blended, or connected that they form an indivisible criminal transaction, and a complete account of the transaction for which the accused is being tried cannot be given without showing the others, any or all of them may be usually shown, at least where the offense for which he is being tried is itself a detail of the whole criminal scheme. Generally speaking, it may be said that evidence of other crimes is admissible for the purpose of showing (when it fairly tends to do so) motive, intent, the absence of mistake or accident, _ common scheme, or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others.”

We think this the true rule of law underlying the decisions, not only in this character of case, but in all eases of crime. And while it is true that appellant could not be indicted nor tried at this time, nor at the time the prosecution was begun in this case, for the first act testified to by the little girl, as more than one year had elapsed, but the dealings of the defendant with her from the time she became an inmate of his home would have a tendency to throw light on and show whether or not their relations (their state of intimacy) were such that appellant probably would and did commit the crime alleged in May, 1914. We discussed this question so thoroughly in the Battles Case, supra, we do not deem it necessary to do so again, and hold the court committed no error in admitting the testimony showing the relations existing between appellant and Helen from the time she entered his home until the act complained of is alleged to have been committed. Appellant was permitted, and properly so, to introduce evidence showing that, all the time she was an inmate of his home, he gave her the tenderest care and treated her as he would his own child, unless guilty of the offense here alleged. These matters throw light on whether or not he would probably have committed the offense alleged, and would aid the jury in passing on that issue, and we might here say that his course of conduct during the whole time is such that would tend strongly to induce one to believe that his contention that Eugene White, and not appellant, was the father of Helen’s baby. However, in holding the testimony admissible, we think the court erred in his charge, wherein he instructed the jury the purpose for which said testimony was admitted. The criticism of this paragraph of the charge is that it is upon the weight to be given the testimony as to other acts of intercourse. The criticism is just, and the paragraph is erroneous and harmful, and, as worded, should not have been given. The court should have instructed the jury that appellant was on trial alone for the act of intercourse alleged to have occurred on or about May 1,1915, and he could not be convicted of any other act, if they, under the evidence, found from the evidence, beyond a reasonable doubt, that any other act did occur, and they could not convict for the offense alleged in the indictment to have occurred on May 1, 1915, unless they found he did have carnal knowledge of Helen on or about that date; that they could only consider the evidence of other and different acts of intercourse, if the jury found they in fact occurred, for any purpose other than as they might aid them in passing on whether an act of intercourse occurred between the parties on or about the date charged in the indictment, if such evidence would aid them in determining that question. Evidence of intv macy, course of dealing between the parties, and other acts, in this character of case, is admissible solely for the purpose of aiding the jury to determine whether or not an act of intercourse took place at the time charged, as are the appellant’s other acts, course of conduct, etc., toward the girl, admissible as tending to show that he would not and did not commit the act complained of.

The objection to the testimony of the witness Fitz that in December, 1913, appellant had said to him he (Haggart) had had intercourse with an 11 year old girl, and it was surprising how young a girl a man could have intercourse with, should have been sustained. Helen, the prosecuting witness in this case, was 13 years old at that time, and appellant, if he made the remark, used no language to individuate her or language that would indicate he' had reference to her. Tomlin v. State, 25 Tex. App. 676, 8 S. W. 931; Yancey v. State, 45 Tex. Cr. R. 366, 76 S. W. 571. If Helen had been a girl of that age, or appellant had used language that would indicate that he referred to her, the testimony would be admissible.

There are several other bills in the record, but we do not deem it necessary to discuss them, as we do not think they or either of them present error.

In filing his motion for á new trial, appellant attaches the affidavit of H. C. McCain, who swears that C. S. Farrar, one of the jurors in this case, said in his presence and hearing, prior to being impaneled on the jury:

“That he knew Frank Haggart, and he believed that he was guilty of this offense and ought to be hung when tried.”

S. H. Taylor swears that another juryman, E. R. Braley, said in his presence and hearing:

“That he (Braley) knew Frank Haggart was guilty as they ever make them, and he would willingly join a mob to mob him; that he did not believe the people of Potter county ought to let Haggart go to trial, but should mob him publicly.”

It is true the two jurors deny making these statements, but Mr. F. W. Dohoney swears that he was present when the juror Farrar was talking in the presence oí McCain, and he (Dohoney) had heard the juror say:

“There is no question about his guilt. He should either be sent to the penitentiary or hung.”

To say the least, these affidavits indicate that perhaps appellant has not had a trial by a fair and impartial jury; and, when such affidavits are made, the evidence heard on the hearing for a new trial should show conclusively that the jurors named had not expressed nor held an opinion prior to being impaneled on the jury before refusing to grant a new trial. A man, under our law, is entitled and should be given a trial by a .fair and impartial jury.

The judgment is reversed, and the cause remanded.

DAVIDSON, J.

I agree to the reversal of the case, but not with all the reasoning, especially the admission of other acts of intercourse. These do not come within any of the exceptions as I have always understood the law. 
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