*1 Robert L. v. Collier State 28,419. 14, No. November 1956. Appellant’s Rehearing Motion for Overruled January 9, 1957.
Fisher, Reavley Barber, Jasper, & Carey Williamson, Sils- bee, Dent, and Thos rehearing] appellant. H. for Galveston [on Douglas,
Leon Attorney, Austin, State’s the state. for WOODLEY, Judge. rape;
The conviction punishment, years. is for five Appellant, age 23, commonly Collier, called Pete lived with his Friday cousin John Jones. wife left Jones’ on California join arranged afternoon to children, for the husband. She including 14-year-old daughter Evelyn, stay their John with aunt, Riley, home, possession Lillian in her and left of the Jones residence. 3; 2:30 Horn,
About A.M. on December Helen who next home, lived door to the Jones heard a noise that “sounded somebody fighting.” as if Evelyn She had seen John at the day home the Jones and knew parents away before that her occupying and that the home.
Helen Horn went to the Evelyn. Jones home and called John Evelyn, heard a female that she took to of John
She voice saying. understand she did not what *2 voice, appellant’s, answered A took to man’s which she Evelyn was not there. her second call and said that John and Riley Lillian Helen Horn then to the house of went investigate asked her to and she did. Riley
Being get door, Lillian went unable to in at the front opened admitted Appellant door and to back. back Lillian, and Helen Horn later in. went drunk,
Appellant and the in his underwear and was was house was dark. vomiting. girl 14-year-old lying in and was She
The was bed asleep was either or unconscious. girl there pulled
The found that cover was off the and it was much on cover. was blood her and on the bed girl Riley, by The was taken to the Lillian McGrath Clinic acompanied by appellant drunken- arrested for who was there ness. girl Pace, clinic,
Pauline a nurse at the testified that brought A.M.; (Lillian was to the clinic about 4 that her aunt girl replied Riley) you?” asked “who did this and the “Pete did it.” Collier Riley girl
Lillian from testified that was not conscious time she found her until the clinic after visit to that she question did not ask her did not hear state- ment from her. morning girl
Later in at the clinic was examined state, and Doctor J. J. McGrath who testified for the whose expert Dr. qualifications testify a as medical were admitted. girl brought made to him and he McGarth determining purpose or not examination for the whether raped; organs she had cov- been that her external female girl blood; ered with clotted that his examination made after removed, up had cleaned disclosed been the clotted blood en- posterior that there were some lacerations wall of others; vagina, long, and two perhaps an inch trance oozing the lacerations. that blood was ex- girl, upon his Dr. McGrath Based examination girl raped. pressed opinion been lacera- that the On cross-examination Dr. McGrath admitted girl’s vagina lining could tions in the mucus membrane bottle, a a coca cola have been caused the introduction of enough object any cylinderical big cause broom handle or stretching thing it.” likely the most to cause “but wasn’t intact medically doctor testified it true that an hymen sexual or maiden-head has been no indicates there hymen explained girl’s intercourse and rupture, prohibited character to have intercourse without *3 tearing “anything fingers big my admit as would as without particular at that time.” Appellant house, testified that he arrived at Jones where lived, brought A.M.,
he 2 gallon wine, about and a with him girl. molesting which made available to He denied girl any way but admitted that he drunk was drunk or “half asleep” neighbor girl’s when the aunt came to in- vestigate. girl’s testimony The “pretty was to the effect that she was passed drinking well out” after appellant the wine and that her, not do to “not as I knows of.” The court submitted the jury case to as circum- stantial evidence and we find the evidence sufficient sustain to the verdict.
Appellant challenge sufficiency does not of the circum- stantial evidence to sustain the conviction connection with ground his sole points for girl reversal to the failure of testify appellant committed the offense.
Bed girl sheets taken from the room in which the found were offered in evidence and jury were taken while room jurors deliberating. jurors,
One of sheets, examination of the bed con- yellow cluded that stains thereon previously found, pointed 94 discharge male sexual identified, were caused
out organ. and to de- right exhibits juror The had a examine the if what
termine for himself the exhibit was what given. weight it should be so fact juror stains were
The statement the re- ground trial caused as because is advanced new during delibera- their ceipt testimony by of additional tions. jurors eleven
The record shows that it was after other the exhibits guilty that examined had voted Harrison Juror as be- thereon in the ing room and identified the found stains discharge organ. male from the all made until Harrison was not statement Juror guilty, had decided that punishment assessed. minimum If can considered the statement at time made testimony, injury decide, point additional need not no we is shown. juror’s during deliberation, jury’s to re- A statement reversal, common sense quire reason and should be such that State, see can was harmful to the Howard v. accused. Rep. Texas 2d Cr. 1048. S.W. *4 inability the our to see statement
We confess how examining juror, the exhibits his conclusion formed from ease, in the then the other who could influenced have appellant’s guilt. and convinced of were then remained appellant, being possible prejudice no harm There overruling motion for new trial. trial did not err in court judgment The is affirmed.
DAVIDSON, dissenting. Judge, (with apology due is a real It or Not” Here “Believe Ripley) ! persons, only that principals
The in this case—and appellant, and who knew whether prosecutrix is: charged appellant testified guilty of the offense —each appellant alleged did not com- happen act and that did not prosecutrix. rape mit the crime of court, So, jury, the trial have case we where facts, majority nothing court,
a say this all of whom know only proved prosecutrix was not state raped by by appellant face someone —all rape not occur. presumption Does the of innocence reasonable doubt (Art. 9, P.C.) holding my still exist this state? The breth- ren, here, shows that does not. let are,
Now see what facts us revealed record. prosecutrix, upon alleged
The whom the state “did make an assault” and whom he did “ravish knowledge of,” carnal age years was a female of the of fourteen alleged and nine months the offense when to have been Lacking only being years committed. at age a month of fifteen testified, prosecutrix the time she was called as a witness nothing state. There is indicate, about nor does this suggest, record possess otherwise that she did not intelligence. normal intellect and alleged date of night was fixed as the of Decem- place
ber 1955. The purported where the act was to have occurred was a room the house in which the witness was staying. Appellant resided at the house. Upon direct examination the witness about night 12:30 o’clock at got came home and that she
up opened quote the door. I testimony: from her (“Q. Did he come room?) No, sir; kept A. his room.
(“Q. Did *5 him?) ever talk with No, A. sir. (“Q. Did he wine, have anything?) or Yes, A. sir. (Q. you Did drink wine?) Yes, some A. sir. glasses I drank you drink?) A. did
(“Q. How much half. and a Yes, glasses half?)' A. sir.
(“Q. and a Two went in the bed you do?) A. (“Q. Then Got what sleep. sleep. and went what?) in the bed (“Q. A. Got You did Collier, come Collier, ever Pete (“Q. Then did Robert No, your room?) sir. A. Is there?
(“Q. he didn’t come You tell Yes, testimony is?) sir. A. what being Hospital?) Sir? A. (“Q. you Do recall ever Hospital being in Jas- (“Q. you Do at the recall ever No, per?) A. sir. eight, morning I
(“Q. morning?) around That A. That did. you?) Jasper, A. didn’t
(“Q. Hospital You to a went Yes, sir. you going
(“Q. all about Is that are tell matter?) is all I tell them.” A. That know to testified: by appellant,
Upon the witness cross-examination against complaint Evelyn, (“Q. you John do No, Collier?) A. Robert sir. you?) of.
(“Q. Did Not I knows he do A. you (“Q. Evelyn, John what was relation between long time, haven’t You have him Robert Collier? known Yes, you?) A. sir. regard
(“Q. him?) How did A. Sir? (“Q. you regard like How did him? brother Was * * * ) Yes, A. sir. *6 regard you you? (“Q. How did he did think of What his. was a sister you?) He treated me like I and treat A. you?) (“Q. do like Robert Collier Would I don’t think he would. A. him?)
(“Q. you stay with house Are afraid to same No, A. sir.”
Further, morning, the next reference to her conditon the testified witness as follows:
(“Q. you sore, Evelyn?) A. sir. John No Were (“Q. you your No, privates?) A. sir. sore around Were (“Q. you hurting?) No, A. sir. Were (“Q. you any your private parts way Were affected your other than No, A. sir. menstruation?) (“Q. sick?) you Other than the normal blood flow weren’t No, A. sir.
(“Q. any Did time?) No, develop any soreness sir. (“Q. you Do injuries know of scratches or around your private parts?) No, A. sir.
(“Q. you No, Have any?) been able find A. sir.
(“Q. you Have any?) Yes, tried to find A. sir. (“Q. And tell, you as far as any?) can haven’t found No, A. sir. (“Q. Evelyn, why you go John clothes to bed with on?) A. promised He swimming Pineland, to take at me got but was late when he back.” In the testimony face of that prosecutrix
positive guilt by denial appellant, this court affirms this conviction. sought The state to defeat the consisting circumstantial evidence of a doc- morning, the condition as also her the next examined
tor who underclothes and of her the bedclothes. as to doctor made the examination who prosecutrix, as
physical condition of follows: *7 girl’s “So, my aunt, Lillie, the to clean I had nurse and done, I in to up, went remove clotted blood. that was When that an disclosed make examination of her. And examination of the en- posterior there were some lacerations in wall vagina. perhaps inch one laceration an trance to There was long. others; it on side of that were There were one either two larger oozing shorter extent. Blood was from the There to a lesser extent from one smaller lacerations. — evidence I determine that there was no no evidence that could — hymen any any hymen had been laceration intact of and, re- patent, my examination, show according did not lacerations, it; my admit cent tears about but it would tearing.” fingers difficulty particular with and without Notwithstanding testimony, following question such propounded to the doctor: your girl you
“From examination of and the effects findings, assuming jury your related to the of that in a penetration the law or- case defines or entrance of a male gan slightest organ amount of be—the entrance male organ completed; having not into the female been as- —need suming necessity to be the state of the definition of penetration rape, proof your of of to 'establish the crime of her, girl jury examination tell not this had whether or * * * raped? Doctor, question? been do understand the Assuming assump- you, those facts which I have and the asked concerning necessary penetra- tion of the law elements tion, upon findings, and based whether or not tell the girl raped?” this been was, opinion my
The witness’s answer “It she had raped.” been why appellant’s object expression
Just counsel did not to the legal opinion upon this and the conclusion the doctor determine, very question the record not does The fact disclose. nevertheless ob- remains failure to legal opinion ject could render such conclusion on appellant’s guilt. part proof of the doctor So, analysis, state, circum- then, in its final we have positive evidence, attempting to overcome stantial injured The circum- declarations and female. nothing supposi- than stances relied tions, amounted to more what-might-have-been. insinuations, why however, cogent are, equally There reasons support the evidence is sufficient I have the conviction. reference to what is evidence rule. Under known as the best rule, the case evidence the nature of best of which proof admits must is until be adduced. Inferior not admissible Jur., it is shown that the best Texas evidence is unattainable. 18 Evidence, Law, 232, p. 365; Digest, Sec. 11 Texas Criminal Key p 462. holding Under that rule has been the consistent court in theft secondary cases that or circumstantial evidence *8 prove taking cannot be utilized to want of consent to the of the property testimony until it has been the shown that State, Rep. 408, owner is unavailable. 156 White v. Texas Cr. 889, 242 S.W. 2d of authorities cited under Note 36 Art. . 1410, Vernon’s P.C necessary prove If it taking be to of want consent to the of property by the owner the thereof a when testifies as witness case, require necesary how much more it to so would be proof by the rape in a case when she testified as a witness in to by the case the commission the accused of the necessary constituent offense, elements to constitute that es- pecially penetration. the act of all, consent,
After whether with or without an offense is the in nature of by an assault is because it consummated an upon person unlawful act the of another.
In person happened such cases assaulted knows what testify fact, to her and if she fails to to such circumstantial ought permitted say evidence not to be for her she that which say case, say. not this refused to —and my aWhat fertile field for fraud brethren have here laid opinion their down this case! why ought
There is reason another this conviction affirmed: jury. be and this is shown the misconduct All evidence heard on the motion for new trial shows that
100 - gave testimony to and before material This reached. a had been jurors before verdict other dis- on the bedsheets effect that stains was to the organ. had so charges No witness a from male sexual juror By upon trial case. appellant, and not damaging jury a putting fact before trial of the case. offered part statement on
My hold that such brethren in- it did not juror not harmful this jury’s fluence verdict. C.C.P., says “shall a trial 753, new of Art. Subdivision having re- jury, granted” felony after a case “where be testimony.” case, upon a received to deliberate have
tired long statutory con- mandate has Under been holding requires a violation sistent court that thereof injury will and that to the accused reversal conviction speculation injury in- presumed and that as to no will be dulged. something seventy There are like cases cited under C.C.P., 753, Note 142 Art. Vernon’s which sustain rule announced. again my overruling long I find brethren line of
So apparent they authorities without reason other than that power to do so. My State, brethren cite the case of Howard v. 122 Texas 371, holding. Rep. sustaining 2d Cr. their That S.W. *9 point. in case is not It not involve a violation of new- 753, provision C.C.P., evidenee of 7 but, Subdivision of Art. contrary, to the was based of Subdivision 8 that article. my respectfully I enter dissent.
ON MOTION FOE REHEARING MORRISON, Presiding Judge. holding
Appellant takes us to task for that the conviction light rape prosecutrix’ can in be sustained that did not do to her “not as I knows of.” Riley came
Lillian testified that home between morning. twelve and o’clock that thirty. about twelve Prosecutrix testified that home he came drink thirty stated minutes for took about She sleep. the wine that she went to then
Helen in house Horn testified she heard the noise thirty. about two investigating got party house, prose- When the vomiting.
cutrix was unconscious from intoxication and was Accepting prosecutrix’ true, all it seems logically chronology follow from this act of events prosecutrix gone after bed occurred to her own and while she was unconscious muffled from intoxication. The female voice heard Horn all would be inconsistent at explanation with the above re- because could have participated sisted or in the act of sexual intercourse made yet certain vocal noises while unconscious from intoxication and nothing transpired regained remember of what after she had consciousness. alleged As jury misconduct, to the it should borne in mind
that whenever article is in introduced evidence the cer- tainly right have a State, to examine and discuss it. In Garza v. Rep. 557, 156 Texas Cr. 2d S.W. we had case which pistol clearly was introduced in evidence. The case right trigger had the pull among test the and discuss it them- selves. Reversible error was only reflected because expert claimed to be an on firearms and told his fellow jurors certain facts bar, juror not in evidence. In the at case question possession special knowledge laid no claim possessed by jurors. his Any fellow other rule than the above unduly hamper would jury. discussion evidence members of Remaining properly disposed convinced we cause of this originally, appellant’s rehearing motion for is overruled.