*1 Rоbert Grizzell State 28,480. 21, November 1956. Rehearing Motion Overruled Appellant’s 1957. February Rehearing Second Motion for Overruled Appellant’s (Without Opinion) March 1957. Written *2 Pope, appellant. Tyler, Alex P. Harry Attorney, Burruss, Loftis, R. Criminal District S. Tyler, Douglas, Attorney,
Assistant State’s District and Leon Criminal Attorney, Austin, for the state. Judge.
BELCHER, statutory rape; years punishment, The offense is penitentiary. The state’s shows that the married the prosecutrix years mother of the six about before the return of prosecutrix the indictment this case and and younger during half-sister had lived with them this time. The proof prosecutrix years age shows that the was fourteen at the time trial case. prosеcutrix testified that her mother worked most appellant operated
the time and the a business where she went daily. almost 7, 1955, She further testified that on November employee she went with the to take an who lived in country hours, home after work that on their return appellant stopped placed private рarts automobile, her, hers and had intercourse with and that he had sexual frequently years. past with intercourse stated that her for the two also She she had told of his conduct with her she because was afraid of him he had told her he kill her her mother if she did and that she told her mother for the first time they attorney’s November then wеnt to the district office.
The state introduced written statement in evi- prose- he and stated that a time when wherein he dence had he employee from work taken an home cutrix had he used a “rubber” prosecutrix; intercourse with the sexual empty package away, identified an empty and threw look- taking the statement package shown him he therein ing he He also stated one like the discarded. prose- with frequent acts of sexual intercourse had cutrix. pros- an Bundy that he made
Dr. testified 26, 1956) morning day (January ecutrix being pene- parts capable testifying her sexual found organ. by a trated male *3 showing testify, that but offered did not prosecutrix and that she and attentive to the had kind been persons constantly in contact with other been had complain opportunities many to of abuse and had absence complained him, she never that but or mistreatment proof 17, that 1955. He further offered November before thought taking all she he was was mad him because
wife it; hiding that she had the business and profit from grand jury did indict him for offense if that said give going for tax evasion or some- him trouble to she was thing. Two, appel- Exception Bills of Nos. One support of
In right inquire fully position he had a to into takes lant juror prospective of a and should explore state of mind in such examination. lattitude a wide allowed appellant court refused to allow reflect that The bills except a summary the first two examined juror each relate to phases of the trial of the to certain case and pertaining law what he do under such cir- as to his answer then elicit cumstances. appellant permitted in the bills was certified The juror governing each examine law to inform doubt, appel- and the failure proof, reasonable of the
burden testify. lant controlling interroga- the trial court action The subject only jurors on voir dire is to review prospective
tion Living- abused his the cоurt discretion. whether ascertain Rep. 302, 214 State, Texas Cr. S.W. 2d 119. Under ston the record we that an abuse are unable to reach the conclusion of discretion is shown.
Appellant complains question of a by the at- directed state’s torney testifying attorney, assistant district while witness, inquiring voluntary if the made a statement writing voluntаry to him in because the character state- of the question question ment was a proper. fact and the im- was therefore question replied To which witness that he could not yes answer or In no. view of the answer we see no reversible question. error because of the complaint presented by Exception Formal Bill of No. 11
to the printed following introduction in evidence the state of the Voluntary
matter: Custody “A-1323 Statement inWhile appeared upper 4” portion —Class printed in the form of the appellant, written statement of the cannot be sus- tained because the trial court certified in said print- that the bill ed jury. matter not read or exhibited to the By Exception 17, Bill contends that Dr. Bundy competent testify was not condition prosecuting 7, ground 1955, witness on November he did not make an examination of her January until which was too remote. As the bill, court certifies in objection went to the
weight and not admissibility testimony. per- of such We ceive no error in this bill.
By Exception Bill of complaint No. Deputy made of being permitted testify Sheriff Shelton to that he had con- appellant appellant versation with the when told him he “that glad straightened was he had his out; business that he did it girl’s for the sake and that he girl; didn’t want to hurt the girl drug didn’t the want court.” into testimony When such was apрellant objected offered the requested thereto and the court to retire the so he could Deputy examine custody Sheriff Shelton appellant ascrtain if to was in at the time he made the him, request oral statement to and such was refused. request The court certifies that at the time of the the witness аppellant tendered to
Shelton was the for voir dire examination permitted testify he before was to to conversation with the appellant.
366 would have witness Shelton to show what the bill fails time appellant the concerning custody the the testified ap- upon the It was incumbent oral statements were made. such relies he by on which pellant his the facts to show bill does not reflect the Hence bill the evidence inadmissible. make Rep. 283, 2d 832. State, Curry Texas S.W. Cr. error. Exception 22, appellant that the By contends No. Bill testimony refusing his to exclude trial court erred in motion brought testified, because, had it was after of James Hardin Hardin, wife, of his Irene out presence attorney of each them in the state’s had talked with rule to after testimony in this case and other about they had so instructed. invoked been witnesses been contention, require In a reversal under order injury may have appear that been done it must be made rule the stаte’s because of violation 64-69, attorney 45-47. Texas Sections and the witness. 42 Jur. Upon testimony an examination of of both James fail to their could have in- Irene Hardin we see how appellant. Obviously they jured were uneducated and did propounded prose- comprehend questions them the unequivocal cution accounts for their or the defense which ruling primarily upon such ex- answers. herein is based Our amination. showing by
In the facts the absence bill of discussed attorney and the two un- between state’s witnesses we are ap- that such was harmful able conclude discussion pellant and that the trial court his discretion in de- abusеd clining testimony. said to exclude urged
By Exception it is Bill of after witness general reputation by the had testified called law-abiding good peaceful citizen and permitting the trial attorney erred state’s cross-examina- following question: to ask said witness “You tion don’t *5 defendant, Grizzell, or Robert know whether knowledge not this had carnal any Bennett at To which Garie time?” the wit- answered, “No.” ness objection in bill that
The court certified was, Honor, object, question and answer “Your we Your purview Honor, improper cross-examination, not in the and testimony.” this witness’ bring quest'.on jury
The and did not answer before the new information. Garie Bennett is named in the indictment party appellant in this case. see no assaulted We harm in such examination. By Exception 29, appellant complains Bill of of certain No. (cid:127)
argument attorney. jury to the the state’s general court certifies the bill that made a objection argument, exception to such took the сourt’s no ruling, request and made no to have same Hence withdrawn. no error shown. By Exception 29, appellant complains Bill of further closing argument jury by attorney, the state’s to wit: taking say
“He had a tremendous lot to about this woman not to a testimony this child Doctor. This woman is a nurse and the shows that she is day night, nurse and she worked money supplying family, her up went into while he built nurse, gave business down there. She was and I am sure she examination, necessary.” that was argument To objected ground legitimate it was not a deduction evidence, from the record, giving out of the and he was unsworn jury. objection The court certified the bill that was sus- jury tained and the instructed not pur- it for any consider
pose. presented, Under facts here the court’s action in sus- taining objection, instructing not to consider argument such we are unable conclude that reversible error is shown. overruling insists that the trial erred motion
amended new trial. alleged newly Grizzell, It discovered evidence that Lucille appellant, wife October wrote a letter to Rachel Moore in which she Willie accused Obediah Lambright, *6 368 Knight- husband, attempting rape of Barbara Jean
former ing, marriage, daughter by a former of Mrs. Grizzell another together, Lambright lived time the Mrs. Grizzell not said evidence was false. That and that such accusation was the present it his within time to him or counsel known to charge sought due to that herein was trial. plan It the show wife, of appellant’s part the mother of and scheme on the against prosecutrix, the him. alleged when that a time
It was further in said motion that jury acquittal for and one the stood eleven for conviction like a look acquittal the one did not stated charged the in man crime the nature who would commit a of juror replied you cannot instant case. To which another juror judge appearance; the had known a man his community regarded popular and in the man that was well indicted for a morals who was offense. support in the
Evidence was offered of motion. presenting newly court in the dis- The trial certified bill to in the letter and covered evidence that the matters referred on the motion not refer offered did connect or affidavit ap- any way relationship the pellant or between letter, we an of wife. From vulgar accusatory it it de- find morе than and made no be mands. trial on motion for rests within decision new court, an trial in the
sound discretion absence discretion, justified re- court would not abuse versing judgment. Upon consideration of the of- evidence support fered in motion in connection with that he had inter- admission in his written statement sexual proseсutrix, course with the which statement when introduced objected only evidence before the to because printed matter thereon which the record shows was certain opinion jury, or we are read exhibited overruling mo- trial court did not his discretion in abuse C.C.P.; Berry State, tion. Art. Vernon’s Ann. Texas 159 Rep. 492, 2d 86. Cr. S.W. error,
Finding judgment trial no reversible is affirmed.
Opinion approved by the Court. REHEARING
ON MOTION FOR Judge. Presiding MORRISON, *7 dispositiоn our his appellant complains bills original says by opinion our we exception 2 and Nos. and right upon his ex- placed an limitation to
have unreasonable juror. not our intention. The prospective amine a was Such questions were: law, you, explained that under to
“1. You understand the as required any testimony the is not to introduce what- defendant cause, you you in in this and I ask soever his behalf if cause, juror as a and the were taken in this at the close of rested, case, State’s and it had the defendant likewise had rested any testimony, putting you, you without would when deliber- upon your verdict, ated part hold the cause such failure on you defendant so to introduce evidence as before against any way circumstance him whatsoever? Now, you required understand that the is prove State to “2. guilt beyond
the defendant’s to Jury the satisfaction of the you and unless reasonable doubt are convinced such evidence beyond guilty from the that the defendant State a reasonable doubt, your duty acquit it would be the defendant and charge Now, you; Court will so you, I want to ask that as- suming you juror case, were taken in this heard all the charge evidence, Court, arguments of the counsel, your and then retired to room upon your deliberation ver- then, though you thought dict еven the defendant might guilty you if believed but then that the State had you beyond failed show its evidence a reasonable doubt guilty, you the defendant was would return a verdict of not guilty?” qualified the
The court bills follows: permitted by “The was Defendant the Court to inform each prospective juror proof "that the burden of was on thе State Defendant, never shifted to the and that the State guilt prove beyond burden Defendant a reasonable doubt, inquire prospective juror and to of each whether he could respect. in that would follow law permitted “The Court Defendant inquire of each juror require prospective whether would the State to prove guilt satisfaction, doubt, beyond his reasonable juror prospective to find would vote Defendant before fail guilty, inquire that should the State and also to Defendant guilt of prove prospective juror’s satisfaction to so pros- beyond doubt, such whether the defendant reasonable inquiry juror acquit defendant, and such was pective concerning juror. any prospective not denied to Defendant ask permitted the Defendant “And further the Court prospective juror the Defendant whether in the event each behalf, failure testify the Defendant’s not to own elected against him, testify taken as circumstаnce to so would be in his inquiry not denied to the Defendant Vóir and such juror.” any prospective Dire Examination of they re- no than a questions, were more As we view the *8 actually qualification shows was what the court’s statement asked. limiting allowed discretion The trial must be some prospective jurors or trials some would the examination of appellant has terminate. remain convinced never We right deprived any that he has valuable failed to show been assigned as error. the limitation herein disposition complains our of bill of ex- next pros- Bundy examined the ception Dr. testified that he No. 17. trial, her speculum a day inserted ecutrix on vagina easiy “as it entered as married and found that person have in the office.” The fact we charged slightly than months after the date more two occurred not render the evidence inadmissible. in the indictment could weight given the same was for the question of the to be jury. disposing1
Appellant’s is that erred in contention we last jury misconduct was shown. He seems his contention impression anything laboring is dur- if said under the be supported by is record ing jury’s not deliberation agree. a rule is do Such error shown. We reversible great bring majority a reversal convic- about doubtless re- upon jury This court is authorized verdicts. tions based against only evidence the accused which was new where verse probably jury influenced ad- ease detrimental This, its- deliberations. versely heard subject. synopsis all cases on the believe, We is fair we by one of how a remark complete to understand loss are at Arp principal once known school jurors that she had charge gotten over morals could into some trouble who to this accused. detrimental construed as new evidence disposed properly Remaining we of this convinced that rehearing originally, appellant’s for motion overruled. cause Eugene Harrison v. State 28,716. January 23, 1957. Appellant’s Rehearing On Motion March for 1957.
James E. Faulkner, Coldspring, appellant. *9 Douglas,
Leon Attorney, Austin, State’s for the state.
BELCHER, Judge. upon plea The conviction guilty is for unlawfully carry- ing pistol; punishment, a fine of $200. No evidence was offered at the trial. exception,
There are no bills formal or informal. complains here judge trial considered matters not offered as evidence weight case which had fixing with him in penalty assessed. upon He relies testi- mony judge of the trial hearing of his motion for new trial.