*1 204 orally judge in- record, the trial understand As we disregard jury the answer.
structed the so, for called not done Even if it was true. such an answer sought having, having gone Appellant into the matter hospital for failed take him to the that the officerhad
show response to do so and test, that he offered the officer’s blood ground mistrial, and trial court did he refused was not charge. refusing by his written to withdraw it err sufficiency remaining error is addressed to claim of jury, jury, “We, the find the which reads: of the verdict of the Guilty. days punishment shall be 3 guilty, Defendant If Jury.” jail, Gooch, of the D. Foreman and fine of Elmer $50. than should receive rather The rule is verdicts liberal (cid:127) finding jury construction, can and if a strict good reasonably ascertained, held as to verdict should be 666, P.C., Ed., 2d and cases cited. Branch’s Ann. Sec. form. reasonably Applying stated, the rule we think that appellant guilty that the found from the verdict ascertained and punishment. assessed the minimum appearing, judgment is affirmed. reversible error No Barry Robert L. State January 9, 28,588. 1957. No. Rehearing Appellant’s Overruled Motion 6, March 1957. Rehearing Appellant’s Second Motion for Overruled 10, (Without Opinion) April Written by Supreme Denied of Certiorari Court of Petition Writ — 21, States, October 1957. October Filed United *2 Latham, Anderson Falls, and appellant. Wichita Douglas, Leon Attorney, Austin, State’s for the state. Presiding
MORRISON, Judge. rape; punishment, years. offense Prosecutrix, grade eleven-year-old student, an sixth testified September bicycle that on 1 she went her on to the step-daughter going skating, home to see his about knocked on door, appellant and if asked Glenda was there. The answered door, she was and invited her As she inside. entered appellant stepped shorts, placed from behind the door clad mouth, scratching so, his hand her face pulled over her as he did bedroom, pushed bed, into the her down on her where stating, her, done this he ravished “I have to Glenda.” She that, progress, appellant pushed the act was in stated while would choke that he and told her her mouth piece sheet into up, her and, he offered he let her after if she screamed her anyone. She if she told again to kill her
money threatened her reported immediately home that she went testified gave her a douche happened, that her mother had mother what and called the sheriff. daughter that, returned as her testified mother Prosecutrix’ condition; hysterical she crying in a
home, she heard her her, and, in assaulted reported her that prosecutrix, found cleaning parts she blood. up private for an prosecutrix to Dr. Smith that she carried stated She examination. testimony, the state rested.
With *3 Smith, ex- appellant Dr. who testified that he called a day question and found prosecutrix on the amined the cheek, developed place the child to be well on her found bruised vaginal years, no tears in her walls or evidence her found vagina. spermatozoa bleeding, within her found male but live sperm de- which he found could have been stated that the He period prior to his ex- posited at within a 24-hour time amination. attorneys later testified that sometime the for the
Dr. Smith appellant “sperma- appellant requested him examine the to Taylor, specialist. them to Dr. a and that he referred toza” stated, hypothetical question, a in answer to that it would He highly improbable, man, impossible, that a not be but spermatozoa incapable ejecting day a was live on subse- who charged day in the indictment at quent to and who one time begat by no a question married to children wife who bore had been but preceding the man in to the husband and the children following him, and the same man had who later been husband begat her, by a with children but no children to widow married ejecting spermatozoa capable day charged live on the would be explained by saying answer that indictment. He his oc- in the casionally operation designed vasectomy (an prevent a when to surgeon sperm) performed, ejaculation of cuts or ties further, stated “I know of tube. He several children off one that I feel sure were the result of born the doc- that been thinking cut vas’ and he didn’t he had both there tor spermatozoa through could channel travel an extra ejaculated.” vessels the seminal into Taylor, urologist, appellant Dr. his stated that attorney following day charged came to him on December ejaculatory specimen in the indictment and had him examine an appellant spermatozoa from and that he found no therein. years prior Dr. testified that the date Grice some six charged vasectomy in the indictment on the he had assisted in appellant that, following operation, speci- secured appellant’s men of the semen in order to check the success of the operation spermatozoa. and found no He stated further that dur- ing appellant’s the trial he had examined the scrotum and found operation scar his made earlier and found no other scar. hypothetical propounded
He answered to Dr. Smith, him, by with the additional facts which were known saying scientifically impossible ques- man capable ejecting spermatozoa. tion to live appellant wife testified that she and the approximately years married been two and had exercised no control methods and pregnant birth that she had not become prior that she had four to her but borne children husband. She marriage prior appellant stated further to her the had been married to another woman who had borne children husband, (who to her first no children was her husband), second and had later children her borne third husband. *4 stated that
She she and two of her children were at home appellant prosecutrix with the at the time the claimed to have raped. supported by testimony In this she been the of her 14-year-old son. appellant’s neighbors of they Several the testified that did prosecutrix see not the enter leave the house on morning question. the in fully shall discuss the evidence more in We connection with ably exception presented by appellant’s the of so bills counsel argument. in brief and state, though by private prosecution, even assisted has a not the with brief. favored court Exception to
Bill of No. 1 relates the trial excusing court Broadnax, a man. showing the colored venireman There is no 208 race, colored appellant is of the this that the a member
in record being juror prejudiced appellant is it nor shown excused. alleged cases, discrimination
In of two recent court. In has been before women selection 923, 260, Rogers State, we Rep. 289 2d v. 168 Texas Cr. S.W. belonged a different sex from pointed out that accused 445, Rep. State, jurors. In 163 Texas Cr. the excused v. Winfield 1956, 8, 51), (cert. Sup. Ct. 2d 765 den. October 293 S.W. opinion v. this court in Alexander to the recent of we referred den., (cert. State, Rep. 2d 81 160 Texas Cr. S.W. appears in 9 A.L.R. Sup. 108), annotation which Ct. majority authorities, we concluded that 811. these 2d From required the member the class rule accused alleged may he heard to com is before whom discrimination case, said, duty, it our plain. In the we “We conceive Winfield otherwise, strong very impel us to circumstances do unless great weight authority.” hold with the himself has not shown a member Since the therefrom, any injury race or shown cannot colored Broadnax, complain the venireman colored heard to be man, State, supra. jury service. Alexander was excused from alleged Exception Bills 4-10 relate to undue restric- Nos. dire of the tion of the voir examination veniremen. Accompanying transcript is a record voir dire proven helpful of the veniremen which has most examination appraising the bills. following: is Illustrative contentions advanced propounded following question by Morrison was Venireman appellant: counsel for
“All Mr. Morrison in sir. Now criminal case the de- testify. may not He if fendant does he desires or he desires, usually up lawyers if he left to his or he not. to determine whether he will will Now the Court will charge you testify if he not to decides if we decide for *5 stand, on put that not him him you we will will Court tell * * *” objection The court sustained state to “the state- jurors or not the to the whether defendant will take ment attorney” by permitted usually and the fol- decided stand is lowing question asked and answered: to be
“Q. saying you Morrison, Mr. as started whether Now I question takes the stand or not there is that the defendant that if he does will here and if Court instructs be decided you not take the stand —he tell that he does not to take will to, if desire but if he the stand he doesn’t elects not to take stand, you you will he will instruct that not consider that fact guilt innocence, you at as a circumstance of his all either happens won’t discuss it. Now if that even the court in- way why you you you will follow that structs law will not? Yes, sir.” A. propounded following Pitts was questions
Venireman appellant: counsel for the “Q. charge you Now then the Court will also part as a charged person in this case that a law may with crime take testify the stand and in his own behalf if he so desires and he if
need not take the stand he does not desire. Now at this time we don’t know whether he take will testify stand and or not that he but event does not take the stand testify in behalf, you his own would hold No, him? A. I think not.
“Q. you In other words would follow the court’s instruc- you Yes, tions on that A. would not? sir.” objection an
but the court sustained question: Pitts, put “Mr. after the State has on their testimony and suppose put that the defendant doesn’t on testimony at all. suppose that there questions Now are some your mind that might you up feel like he clear if he took the stand, witness understand, you there suppose but are, there you are as you in doubt to whether or not should find him guilty or And innocent. so doesn’t take the witness stand testify. you Now with this himself doubt know, here don’t got your You have some own mind as to whether guilty you you should find him innocent. use, Would you if situation, you were in use his failure testify guilty him and find him under those circumstances? ” * * * Appellant upon relies authorities such State, as Meador *6 case, Rep. 608, trial
94 Texas Cr. S.W. 297. In that permit examine court to counsel for the accused to refused against they prejudiced the law to determine if were veniremen danger, which, quite apparent real or of self defense based on naturally, do in But we resulted a reversal of conviction. such a us here? think not. case before We qualified juror and stated as a The venireman Morrison the failure he not consider would follow law would against testify as of the accused to in his own evidence behalf permit to inform the venire- The declined to coúnsel him. court usually testify made not man decision case, attorney in an If this were true accused. prove jury, it and so we must way he could to the there was no convey inadmissible evi- question as an effort to construe the selected. to the he dence venireman before Pitts, question impresses us as the second As venireman having an being repetitions the same in un- once answered right prevent equivocal the trial court had the manner language. question slightly in different propounding of the same following objection question an to the court sustained of venireman Wood:
“* * * * charge testify you he that if does not will Court any guilt, you you that as of his will not consider evidence will any manner. it allude to it in Now not refer to or mention testimony closed, you position are is where if after the guilty, you are you quite that the man is are not convinced guilty trying your he is or whether he up mind whether make say, may innocent, taken the stand now there and he hasn’t is things you your mind that think that if he took the some may up; there not be but there clear them stand could up failure to take the stand and clear these then his also. Now against you matters, take that into consideration would little those circumstances other circumstances?” him? Under question did, thereof, propound this to him: in lieu but * “* * * says law that it cannot held Mr. Wood not take any purpose. he does or does a man Whether everybody else has a to sit and I and stand. You witness gov- that our whole laws form of is one of basic silent. That juror per- upon. in order to be fair Now is ernment based that he in his own mind would hold feel have to son would doing anyone it going the man all that would be would be everybody. provides by what the law Now the understanding law, is, you go into that *7 open jury mind and not a fair and consider the fact box with testify, determining or does not as far as that the defendant does guilt anybody sit his Because he can when innocence? there ought might testify think that he but does not have to and it against him.” shall not held having appellant, peremptory after challenge
The exercised Wood, bill, purpose got of his a favorable answer to question says the excluded and now if he could re- have prior such ceived favorable answer to election he would have chosen Wood. question have concluded that the court’s
We was sufficient proper appellant and that the should not pro- be allowed to pound questions of him the venireman that would tend to commit reasoning course of detail advance of his selection. al, (writ Lassiter v. Bouche et refused). 2d 33 S.W. By Exception appellant complains Bill of No. that he was permitted prosecutrix
not to ask the whether or not she had boy had sexual relations with a certain community.
Though gave the court ample opportunity of perfecting exception by completing bill question securing an answer thereto in the absence jury, he de- by stating, sir, nothing clined to do so “No if get we can’t it jury don’t before the we care to it have before the Court.” regardless that, The bill recites prosecutrix’ of what answer might been, to such the answer would have had bearing weight upon jury given would have her testi- mony. argument. is indeed a This novel This is a bill to the evidence, yet exclusion of nowhere in the record does the appear. excluded evidence In the absence of such a showing, we might appraise at are a loss to know how we the bill. argument
Appellant’s last is addressed to the sufficiency to sustain the conviction. the evidence He takes prem- as his assumption jury accept ise mony bound to the testi- scientifically it was impossible of Dr. Grice for the spermatozoa. ejaculated appellant to have He overlooks the testi- witness, expert Smith, mony his other Dr. who stated that impossible, but would highly improbable, several together testimony, known of further that he had with his undergone fathers had had been after their children who born operation. such an eleven-year prosecutrix was a com- testimony of the old
plete rape. case of testimony any part liberty at believe passed They witnesses reject the remainder. saw the and upon liberty their credibility, at to disturb and we are not their upon probative evidence. the same is verdict where based Finding error, trial court judgment no reversible is affirmed. *8 Judge, dissenting.
DAVIDSON, Broadnax, Negro, duly a a drawn mem- as Venireman jury to the in this case was be the from which ber of venire things, was, qualified all under the Constitution He selected. jury to service. He was not shown be of this state for and laws jury in this case. disqualified to serve on the state, objection request the and at the of Over from the list and from Broadnax venire the trial court dismissed jury Negro the race a member of because service jury feed a house and of the absence of facilities to because Negro races. composed of the white of members both 923, Rep. 260, Rogers State, 2d 163 Texas Cr. S.W. In v. 765, 445, Rep. State, 2d Texas Cr. S.W. Winfield that, my attempted dissenting- make it clear to by opinions, I to jury mind, arbitrary service or refusal to call women the being the called of therefor after was violative empanel women process and of due under this state and laws of Constitution cases, In those women and Federal Constitutions. both State right jury the of service and denied discriminated were sex. because of their stated, juror case, was dis- as has been In the instant right jury service because and denied
criminated Negro race. a member of he was Negro may arbitrarily race dis- be member of If one race, jury of his service because disqualified missed Negro necessarily follows that all race members be so treated.
It is now settled state that one law accused right jury by has crime no to demand that or before whom fairly, selected, he is to be tried a cross shall drawn and from qualified section of all those jurors, are as who under the law serve race, sex, nationality, particular without reference to membership groups in established or classes. poor It has often said that it is work been a rule that will not ways. if an accused jury both Now cannot demand that qualified jury selected those from service without reference sex, race, my then, by class —as brethren that same hold— rule, the accused would have the demand that he jury only a tried from before selected those who come within sex, race, the same or class of a which he is member. demonstrated, my mind,
Thus fallacy is utter my rule of law which brethren have announced. wondering help my
I cannot what brethren would hold if a Negro only member of the race were to insist that members of Negro jury service, race be drawn for or if a woman were only to insist that jury composed she entitled be tried women, or white male were to insist that male white persons compose before whom he is tried. I am at loss my brethren, holding to understand here, how under their could *9 recognize fail to insistence. such complain only race, If the accused can that members of his sex, service, then, jury class are denied in order such that right preserved, complain jury the must be selected from groups Only those and in none other. that manner would the right prevent unjust accused be accorded discrimination. My justify position, brethren their and the situation in which themselves, they by saying placed have the is accused de- law, guaranteed equal by protection of as nied State and Federal Constitutions, only against is a of the when member class practiced. the discrimination is which complaint registering which the here is and Rogers complained they,
of which and was not that Winfield as sex, class, race, group, of members a certain been dis- against drawing jury, of they criminated in the but that jury persons hav- from all drawn those entitled to were ing jurors law, refer- qualifications of under the without sex, nationality, groups, ac- race, or classes to which the ence to belong. cuseds legis- XVI, Constitution,
By of our Art. Sec. State “prescribe qualifications of enjoined law lature upon grand jurors.” placed limitation petit there and legislation right power that “neither the nor grand juries petit shall denied or duty on to serve abridged by sex.” reason of provision, I was—and am still
In view of that constitutional holding Rogers my of —amazed at the brethren Win- permitted cases, women were there to be discrimin- field because against solely of their sex. service because ated holding Rogers fallacy me, of here To My is thus demonstrated. cases brethren have Winfield protection wholly due of misapplied the clause the Constitutions application It has no here. the instant fact situation. against practiced The race here was not discrimination juror. By dis- The discrimination was accused. crimination, appellant was denied his constitutional of process of law. due respectfully dissent to the affirmance of this
I conviction. APPELLANT’S FOR
ON MOTION REHEARING Judge. WOODLEY, complains exception relating
Appellant his bill to the excusing juror Ed should Broadnax not have been dis- solely posed of on the whether there was racial dis- position or not he complain and whether crimination jurors of the discrimination colored race. exception light will be reconsidered in the The bill of *10 “In appellant’s this case State did not contention: exercise excusing challenge, prospective action in Court’s its Articles juror was violation above cited without cause gave V.A.C.C.P.), and, effect, (Arts. seq. et 612 State challenges.” peremptory sixteen
215 juror, prospective exception certifies that The bill qualified; Broadnax, examined and found Ed was challenge right requested exercising its the state before being man”) ; (“he that at Broadnax colored court to excuse 13 examined the state had exercised the time Broadnax was peremptory challenges the court excused Broadnax objection. over was ex-
The further certifies that at time Broadnax bill jurors cused had been sworn and had he not ex- eleven been left, challenge peremptory appellant, had cused who one accepted Broadnax. remaining further bill shows that there were 46 venire- men available. challenge jurors The state entitled 15 without as-
signing any reason therefor. Arts. 614 and 615 V.A.C.C.P. challenges Thirteen peremptory such used been before Broadnax was at request. excused the state’s right had no Broadnax, vested to have Juror right statutory and the state had the peremptorily excuse 15 veniremen. This is so because the state and an accused have right reject but never have any particu to select juror. lar State, McMurrin Rep. 434, v. 156 Texas Cr. 238 S.W. (cert. Sup. 115; 2d 632 874; denied 72 Ct. 342 U.S. L. 96 Ed. 657) State, and Ross Rep. 157 Texas Cr. 2d S.W. (cert. 1067; Sup. denied 969; 1365). Ct. 343 U.S. 96 L. Ed. nothing
There is exception in the bill of or in the record to show that after Broadnax was the state excused used another challenge. peremptory showing
In the absence of a that the state used fifteen chal- lenges having in addition to Broadnax excused in effect allowed challenges peremptory state to use sixteen in violation of Art. 615 V.A.C.C.P. portion
Our attention is directed to Exception of Bill of opinion witness, No. 11 wherein reads: “That operation success, in 1949 was a and that the defendant had completely been sterile ever since. foregoing testimony
“That none of the controverted *11 degree; slightest a that it was scientific im- rebutted possibility deposited sper- could that the defendant live vagina prosecutrix as was found on ex- matazoa Smith; Dr. that the verdict witness amination entirely upon prejudice and was without bias was based support in the evidence.” judge interpret this as certification of the trial do not We supported by the evidence that the verdict was based but appears upon prejudice. hand, it On the other bias and language part quoted contention which the upon probative value “that there was no evidence jury could base conviction.” rehearing
Appellant’s is overruled. motion Tona Clifton State 29,162. October 1957. No. appellant.. Howard, Dallas, Tom Attorney, District Henry Wade, Criminal Charles D. Caba- Joseph Assistants District At- Joiner, Bowie, A. D. niss, M. Attorney, torney, Dallas, Douglas, Austin, State’s Leon the state. Judge. Presiding
MORRISON, driving punishment, intoxicated; while The offense days jail and a fine three $50.00.