Qualls v. State

KRUEGER, Judge. The appellant was tried and convicted of the offense of rape and his punishment assessed at confinement in the state penitentiary for a term of five years. The testimony adduced by the State showed that prosecutrix, who was a few months over the age of seventeen years, in pursuance of previous agreement with appellant, met him at 11:30 at night in her father’s field where she voluntarily en — 608 — gaged in an act of intercourse with him. Appellant testified in his own behalf, denying that he met prosecutrix at night in the field and denying having had sexual intercourse with her. One of the main grounds relied upon by the appellant for a reversal of this case is based upon bills of exception Nos. 6, 7, 8, 9, 10, 11 and 12, relating to the argument of the district attorney. We deem it only necessary to discuss bill of exception No. 7, which reflects the following occurrence: The district attorney, among other things, said: “And Claude said, ‘Oh, how could he have made her pregnant that one time?’ but, gentlemen of the jury, he forgets to mention the fact that she said he was the only man that ever had intercourse with her and he objected to the other acts that I tried to prove.” It is obvious that the district attorney, without being sworn as a witness and without subjecting himself to cross-examination, by way of an argument testified to facts which the trial court held were not admissible. Such conduct on the part of the prosecuting attorneys has been many times disapproved by this court. See Battles v. State, 53 Texas Crim. Rep., 202, in which case the district attorney said: “We know there were other acts, but we cannot show but one.” This court, in passing upon the question, held that the argument was improper. The State charged that the act on which she relied for a conviction occurred on April 1, 1934, and she was restricted to said act, because any subsequent act could not constitute the offense of rape inasmuch as the prosecutrix was then no longer of chaste character. If there were other acts of intercourse which occurred prior to the act charged then, for the same reason, he would be entitled to an acquittal. See Bayles v. State, 97 Texas Crim. Rep., 87. The district attorney’s argument was misleading; contrary to the court’s instructions, and not a proper reply to that of the appellant’s attorney, who said: “Oh, how could he have made her pregnant that one time?” for the reason that an act of intercourse which may have taken place a week or a month prior or subsequent to the act when she conceived could not have contributed to her pregnancy. She either became pregnant from this or some other act. The zeal of the district attorney and his vigorous prosecution is commendable, but he should not lose sight of the fact that defendant is entitled to a fair trial uninfluenced by any improper argument or statement of facts not admitted in evidence. The other matters complained of by appellant will not likely arise upon another trial and therefore we pretermit a discussion of same. — 609 — For the error herein pointed out, the judgment of the trial court is reversed and the cause remanded. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.