*1 150 held, State, 544, have in Lewis v. 155 Tex. We Cr. R. S.W. implication language
(2d) “the used had reference to the defendant’s sary must a neces- failure argument appears us, one.” di- To here to have been already being rected evidence in the record rather than supply allusion an failure to more. Remaining properly disposed we of this convinced that cause rehearing originally, appellant’s motion for is overruled. Haley Thomas v. State 1952. February No. 25583. Rehearing 2,1952. April Denied *2 Presiding. Judge McGregor, Hon. M. Willis Johnson, Jr., Worth, appellant. Joe J. Ft. Heilman, Attorney,
Stewatt W. H. Criminal District W. MсLean, Tolbert and John E. Assistants Criminal District At- torneys, George Attorney, Austin, Blackburn, and P. State’s the state.
WOODLEY, Judge. Appellant, year-old a married a man and the father of son, rape year-old girl, convicted for a and the 4% punishment assessed his at death.
According confes- state’s evidencе and to sion, appeal, the admission of which is attacked not on this appellant went to the home of mid- Mrs. Hammerschmidt about night night her two await her return from a club. He found there, year-old boy victim, year-old a 14 and the children 4% get go who had retired. He thing some- invited them to with him to girl put boy dеclined, to eat. her the little on dress and left the with him. house going cafe,
Instead of he carried the child under a bridge confessed some five or six from her home. He blocks put finger private parts, put male he his in her then his organ against privates finally penetrated and her femalе parts to the extent at least a half-inch but was unable to enter further because of her size. home,
He then took her 1:30 A.M. The arrived about mother ap- put the child in bed with and and she meantime following morning. 9:30 the until about there remained pellant surgeon, testified that he Kibbie, physician аnd Horace Dr. following day. He about noon victim examined vagina, condition of her dilated, tom and lacerated described expressed con- and observation examination from his and intercourse. definitely act had a recent had clusion that she sought insanity. have He alsо Appellant’s defense was pro- insanity showing temporary mitigated by punishment intoxicating liquor. voluntary, recent use duced behalf, had he testified that he his own a witness in As night question remembered drinking heavily on the *3 bridge girl the nothing carried the little time he from the explained following morning her home. He аt the until he awoke confession, he that to the effect in his found the statements child, by saying told that the doctor that he was ravished there- and he must had ravished that that she had found it. fore have done victim, tes- Hammerschmidt, mother the little
Mrs. brought child noticed home she when tified that crying. said she saw and had been She tired that she looked wrong. Ap- legs clothing and asked what her and on blood following morning, and he until the pellant remained there hap- again inquired child what had left, of the as to mother going door, said, the child appellant was out pened. As you.” goes Tommy until and I will tell Mamma minute “Wait testify, permitted over then Mrs. Hammerschmidt was following her appellant’s objection, conversation with daughter: said, happened’ said, ‘Tommy asked
“I ‘tell me what and she something go her I asked what me to to eat and he hurt me.’ * * * Tommy he took he did. told me that had taken her She bridge nasty played and me that had her under the she told he her, he and I asked her what he did and told me that she finger used his on and hurt her.” following ap- immediately made The statement of the child gestae. departure pellant’s was admissible as res regarding question presented testi- A more serious victim’s stаte- child objection as to the over mony admitted family, lived Copeland who to members made ments nearby. being nothing upon record, did
According the mother perversion which appellant’s acts child of informed injured Cope- sought out the appears to have then The child hеr. work- caring her mother was her while lands, had been ing. pres- Copeland home, ladies there arriving Upon at the ap- squirming and and was nervous that ent noticed say. something wanted to
peared her mind she to have on appel- testify, present over The ladies inquiry of them objectiоn, answer to one that lant’s something Tommy? guy, that He did “You know the child said: finger put up me and made awful to me. He his me bleed.” did, replied, “No, victim Asked if that all he the child thing put up he his old me.” testified, objection,
And the ladies further over that her; appellant put it his hand over her child said that hurt crying. up аnd mouth and told to shut she started statements It is contention gestae, hearsay Copelands was not admissible as res *4 was not to and he stresses fact that child competent imma- and was not a witness because of her turity. suffering appears victim
It that the child was still from the experience appellant, of her at of the well horrors the hands as neglect subjected pres- to was which she because of his ence, until a short time she wandered to before the home of protectors. her State, In v. SW(2) Williams 145 Tex. 170 Cr. R.
490, we said: “Here, year-old girl is, night, a in the dead hours of the 41/2 forcibly Shortly thereafter, removed from her home and bed. cry- neighbor, she is found outside and near the residence of a ing. bruised, choked, by She has been someone. and assaulted The condition of neck and her such that she cannot throat is
154 is, her. within a time finds short person who She talk to the fоund, parents. her To those carried home to she is after carry arriving home, Upon when and not talk. she does her home she, time, inquiry, for the first father make and her mother happened and as to what has declarations makes the statements age of her, her is. A of the tender assailant child and who charged knowing nature, ex- hardly could this one her, tent, happened to of the crime has or of what or seriousness thing of the child perpetrated. The and human a natural circumstances, do, age prosecutrix to under the same of the that, occasion, is, in рrosecutrix childlike did on this to do as the happened fact manner, parents The her what had her. tell explicit prosecutrix was not more definite or in her state- that strongly identity to dis- of her assailant tends ments and prove parents she said to her was result idea what contrary, thought premeditation, but demonstrates or through speaking said that what she was the act her.” not re- evidence the child victim was here shows ceiving mother, proper parental in from care large dependent upon Copelands protection measure guest Appellant appears and care. to have a welcome was known home after the mother’s even unfortunate injured by to have been mistreated or him. record,
Under facts found in this the trial court warranted in his conclusion that were declarations year-old natural acts of the res сhild and admissible as gestae. Further, appellant’s testimony under evi- and the state’s child, report dence as condition of the neighbors to her appears mother and to the have been testimony objec- same effect as heard to which no made, reversal,, tion was requirе would not authorize or though hearsay. the child’s declaration be Exception complains that, Bill objection, No. over his panties “obviously and dress of the child which victim bloody,” were admitted in evidence. *5 qualifications
The bill de- this show that court trial certify clined to proof any that such ma- exhibits were not of issue, terial good but certified that were exhibits offered in “proof faith and very were of a material de- issue since the guilty charged rape plea of not fendant was and entered no of the occurrence.” and later testified that he had recollectiоn objection only of- qualifications The further show that was, by appellant offered fered at the the exhibits were time complete. “I don’t think identification The has been it, that wore them a substi- didn’t and it would be tution.” bill, qualified,
This as shows no reversible error. complains Bill panties No. 9 “dis- and dress were played” jury range by attorney at close the district said, “Gentlemen, doing this, I ex- dislike but I would like to you hibit to pants, the condition of these as well as dress. glad I would you be anybody to hand them to if wants to look at them.” qualified This bill is in much the same manner Bill as Exception certifying No. the trial court further that no ob- jection was display. qualified, made As no shown error is
by this bill. Bill complains No. 10 overruling appellant’s of the mo- tion for mistrial clothing. because of the introduction of the This bill qualifications Exception has the same Bills Nos. 8 and and shows no error. Exception
Bill of No. 11 relates to thе action of the trial following overruling court mis- motion that a declared, trial play instructing in dis- counsel for the state not to clothing examine, for them to leave but to originally exhibits on the they table where had been since introduced might in order that counsel them examined have by witnesses, if the occasion should arise. given instructions judge absence trial jury, of the we see no harm to court’s actions. Exception
Bills of complain testimony Nos. 12 and 13 of the present Copeland ladies relating at the home re- sult of their injuries examination of the child victim and the they оbserved.
156 properly- The witnesses were no merit in this bill. seeWe private permitted condition of the child’s as to the parts they which observed. during the Exceptions complains trial the Bill of No. by brought identified into courtroom and
child victim was the testifying mother, examina- the time on direct who was at tion. testify,
Though competent was the the child was not age, sex, appearance entitled to know the size pro- alleged error in and we find no to have been ravished cedure followed. punishment appellant’s as- contention overrule
We punishment cruel, unusual excessive. The sessed was or jury, verdict. and the evidence sustains their in- appellant’s fairly of defense The trial court submitted regarding temporary insanity produced sanity and the law jury re- voluntary liquor, alcoholic but the recent jected use of mitigate punishment and declined to defense right. intoxication, was their because commended appointed are to be Court counsel diligence defense presentation of for their appeal. on the trial and his contentions on judgment affirmed. appearing, is No reversible error Opinion approved by court.
ON MOTION FOR REHEARING MORRISON, Judge.
Appellant forcefully well-prepared presents, brief both in a holding argument, in and in erred able his contention that we injured by the admissible the two different statements made child. case, In not to have this we have which seems factor attention,
emphasized any coming in of the cases to our importance. injured re- which we think vital until presence mained in shortly had ravished her man who because before made statements. This she night spend him her and mother time, injured passage under child. The same bed with the would, it, circumstances, intensify en- fear such as we see imаgine gendered by we the attack rather than alleviate it. Can *7 years a tender had been state of mind of child of who such brutally so attacked and then forced to lie in the same bed with fearing, night, her attacker for the remainder of the it is reason- assume, might repeated? to able that the attack be appellant, It is obvious that child as evi- was afraid of by following denced' the statement made to her mother morning, happened in which she refused to disclose what had appellant very happened, until had left. From what had his presence implied injure. the threat to
Appellant spontaneous contends that there can be but one outcry injured party. from an To so hold would reduce law to spontaneity the rule of mathematics. If the element of exists outcry made, at the each time can of no we conceive why vаlid reason Here, same should not be admissible. reported child mother, who, the attack to her it must have seemed child, lightly; thereupon, received the same went at she neighbors, once to her who had extent cared for her to such an that relationship their had parenti, become almost one of locus and revealed them circumstances, her troubles. we Under feel her statement to them to be admissible. statement, The original opinion, in our that a reversal
this cause should not follow even if the were child’s statements to be being hearsay, considеred may fortified, in addition there, what by observing we appellant that testified said. in his own behalf deny and did not that he had ravished the child or contradict the confession as to the commission any manner, merely offense said that he did not remember whether or not he had testimony, done so. Illustrative of his on by state, cross-examination said: record shows that he
“In your question, answer you ‘You even told Howerton sorry thing happened,’ about this my but it had answer is, ‘Yes, sir.’ I deny didn’t it to them.” Appellant complains that the mother re- was injured count that the inquiry child had answered an while the appellant present was still happened about what had to her saying, minute, Mamma, goes “Wait until Tommie and I will you.” tell observed, As we have heretofore this was statement possible
the best was evidence to show that afraid appellant report and lent credence to the she mаde after he had left.
Appellant says last in- that error was committed when the jured party, though witness, competent not a was called into mother, already court room so that her testified had presence age, might identify as to her sex and jury. find, record, immediately left We from the child that showing the court room after this done. no There is anything occurred, any further nor indication in is there prejudiced bill thereby. original opinion,
In procedure our held the identi- we as to injured Appellant’s fication of the proper. now contention is that such evidence was сumulative of other evidence on the question age of her and sex. fact that such evidence was *8 against admissibility. cumulative does not militate its Johns State, 503, v. 820; State, 155 Tex. (2d) Cr. R. 236 S. W. Beard v. (2d) Tex. Cr. R. 171 S. 869. W. Remaining properly disposed convinced that we of this cause originally, appellant’s rehearing motion for is overruled. v. State. Kemp
Grover April 25710. 1952. No.