*1 allegation specific unnecessary rendering additional an that fact. payee’s name on the back endorsement That the false longer forgery is no debatable. constitutes
of the state warrant 501; Seely Tex. Cr. R. Dreeben State, supra. guilt. abundantly No neces- establish
The sity detail them. exists to here affirmed.
Opinion approved the court. Clay v. State. January 9, 1952. 25531.
Rehearing February 20, 1952. Denied Presiding. Dawson, Judge Hon. A. A. *2 Canton, appellant. Sanders,
L. F. for Canton, George Tunnell, Attorney, Joe Criminal District Blackburn, Attorney, Austin, P. for the state. State’s Judge.
MORRISON, rape; punishment, The offense is assault with intent two
Prosecutrix testified time of was at assault uncle her of husband whom she had divorced; later her husband had left their house in the County, leaving rural section of Van Zandt her there alone with appellant, at which time the assault occurred. Prosecutrix extri- appellant’s cated herself from advances and ran to meet her husband, returning who was from the store. supported
Prosecutrix testimony by family in her her doctor, distraught highly who testified that she was torn, the attack and that her clothes were members family, who corroborated the doctor’s and told of bruises her throat which were for visible some time there- after. testify, grounds did not but defended on the
insanity and which, offered additional evidence if it had been believed would have indicated that there had been some sort of a flirtation on between ap- pellant prior to the attack. jury accepted and, version of the incident the evidence in so feel, amply we doing. were exception Each of bills are directed grant grounds failure of the court to a new trial on the set forth therein. No. 1 misconduct rela- during
tive a discussion their deliberations about having penitentiary been in Appellant’s in Louisiana. amended motion for new trial is sworn to himself as an affidavit of not find attached thereto true and correct. doWe alleged, very juror. From the nature of the misconduct within the room. occurred Vyvial State, In our decisions in 111 Tex. R. Cr. 83; (2d) R. Toms v. 150 Tex. Cr. S. 174; (2d) (2d) Ramirez 322; and Boone v. requirements forth the of a motion. set valid
Recently, in Vo well v. we said: bar, court, irrespective “In the case at the trial of the defect motion, proceeds in the to hear evidence from a number of the jurors. pleading The motion before court was insufficient as a *3 in that requisite it was not the mem- affidavit of a jury, and, therefore, overruling ber of the his action in the same stage any assigned proceedings at of the could not be as error.” Exception Bill of question No. 2 seeks to raise the jury verdict contrary of the should be set aside to the as preponderance great weight testimony. 312, held Ross v. (2d) 137; 220 639, v. McGee 155 Tex. Cr. R. (2d) 707; Wenck question insanity was a of fact jury; and if verdict, there is evidence to their we will not disturb the same. Exception
Bill of jury’s No. 3 relates to the verdict. findWe therefrom jury returned to the courtroom their and, having agreed upon deliberation verdict, attempted through their foreman orally. juncture, to return it At this court verdict, instructed the to write out their and the fore- man, compliance instruction, with such wrote on the bottom charge, defendant, Clay, “The charged as rape’. ‘Assault with intent The said defendant was found sane at the time of said offense and assessed a mini- mum sentence of two Dean Brown —Foreman.” showing There is no objected procedure to this time, showing any nor is there a effort was made poll jury. court to We conclude that no error is shown the bill.
We are cited to Woodall cause, among things, where we reversed other reaching because the did not retire deliberate before their verdict. are Such not the facts before us here. Exception a witness because was not
permitted testify occurred between what past. at undisclosed time in some bill specifically deficient because does not show what the answer testify. permitted of the witness would have been had he been is, further, showing appellant excepted There in the bill that ruling sustaining objection. court essential. These are charge
Bills of Nos. 8 and attack the complaint the court. The in each shows have been raised for P., the first time motion for new trial. Article C. C. lating charge, part, to the court’s reads in as follows: “* * * charge Jury, Before said is read to the defendant his Counsel shall have a reasonable time to examine the same objections writing, distinctly and he shall thereto in * * *” specifying ground objection. each In Note 67 under the above article in Vernon’s Annotated Procedure, we find numerous authorities hold- ing objections urged to a first ain motion for new trial come too late. *4 us, From the record before now reform here and correct judgment so that it will actually reflect the verdict as turned appellant and guilty show that of the offense rape. assault with intent to do this
virtue Article In Procedure. McCor- quodale we outlined our respect function this under the above article.
Finding error, reversible of the trial court is affirmed.
ON MOTION FOR REHEARING.
GRAVES, Presiding Judge. rehearing motion for is concerned with the fact that he claims that at the time of the commission of al- prosecu- present to
leged intention ravish the offense he had no reading resistance, despite and that a careful trix again carefully read us. have would convince We so of his cited and also the cases facts propostion. necessary completed act It will be that it is not noted perform act. is intention to to show charged intent to commit the offense of with an assault with rape. guilty He not under contends that he would be eventually in- herein because of the fact that he abandoned the tent of his assault. held, so, recently the mere
It has and oftentimes been purpose fact of the effect not failure to his would mean that If his he did not intend commit the offense. it was rape upon perpetrated intent to time the assault was female, regardless he the might he would be of the fact purpose. Tucker v. failed to his See effectuate volume), (Page decided this p. sec. cases cited. also 35 Tex. Jur.
As intent was at the time what the assault, party, injured was doubtless which following: finding such, assistance go stepped
“Leon over and I out toward the table started calling grabbed the back and Leon me and door still Clarence struggling trying get my had hands me I behind and was aloose he threw me the kitchen bed and told me down on fighting get way it. that he trying it the he wanted I was would get put my and he knee in stomach and he aloose choking going get it, just I had was me and he said he behave, kill as well he was it—he would me if give I didn’t it to him.” rehearing
The motion for is overruled.