DEAN HARPER V. STATE
No. 28,115
Texas Court of Criminal Appeals
May 9, 1956
Appellant‘s Motion for Rehearing Overruled June 20, 1956
361
Finding no reversible error, the judgment of the trial court is affirmed.
Opinion approved by the Court.
ON MOTION FOR REHEARING
MORRISON, Presiding Judge.
Appellant takes us to task for not discussing mоre fully in our original opinion his contention that the evidence was insufficient to support the conviction. He says that the evidence does not preclude the outstanding hypothesis that the firеman and not the appellant broke and entered the rear door of the pharmacy. With such contention, we do not agree.
Officer Jones testified that when he turned the corner immediately after the blast the appellant was staggering away from the back door of the pharmacy and was some ten feet away from the door, which was open at the time. He stated furthеr that no fire truck had arrived at this time. The back door showed signs of having been forced, and the appellant was in possession of two unused billfolds of the same kind as those sold in the pharmacy. Thе owner was unable to trace the source of his supply of billfolds because his records were destroyed in the fire. The appellant was not brought to trial for some years after the offеnse herein charged because he escaped from jail.
Remaining convinced that we properly disposed of this cause originally, appellant‘s motion for rehearing is overrulеd.
Bill Allcorn, District Attorney, Brownwood, and Leon Douglas, State‘s Attorney, Austin, for the state.
MORRISON, Presiding Judge.
The offense is rape; the punishment, five years.
Prosecutrix and one Jack Harper shared an apartment in the city of Brownwood. Both of them denied that they had ever slept together. On the night in question the appellant, who was Jack Harper‘s nephew, came to the apartment looking for Jack. After waiting a while for Jack to return and after nightfаll, the prosecutrix and the appellant left in an automobile in an effort to locate Jack, but, instead of driving to where Jack might be encountered, the appellant drove out in the сountry, where he brought the automobile to a halt and an act of intercourse took place between them. The prosecutrix testified that the act occurred without her consent, in sрite of her utmost resistance, and after the appellant had hit her several times on the face and head and had choked her into unconsciousness. The appellant testified that it оccurred with her consent.
After the prosecutrix got back home she called the officers and reported the assault.
The evidence of most probative weight in the case relatеs to injuries sustained by the prosecutrix.
The sheriff, who saw her that night, stated that she “had skinned places about her face and about her neck, and her eyes were swollen and discolored and her nose was dislocated, or it looked to me that way, or broken, as it did not set in the posi
The prosecutrix was unable to return to work for two weeks following the assault.
Dr. Jensen examined the prosecutrix the following morning and found both her eyes to be black, a bruise above her left eye, an area of contusion behind the right ear, abrasions of the skin on the neck and at the base of the neck, areas of tenderness on the scalp and on one leg, and a fractured nose.
The appellant testified that he drank beer with the prosecutrix beforе they left the apartment and that she proceeded willingly with him to the spot where the intercourse took place. He gave the following explanation of the injuries to the person of the prosecutrix which are summarized above. He states that during the course of the act of intercourse the prosecutrix had called out, stating that he was hurting her back, and in her efforts to рush him away had scratched his face. He stated that this angered him, and, in retaliation for the scratching, he had slapped her across the face one time with the back of his hand, but immediately аpologized for having struck her. He specifically denied having choked the prosecutrix but made no explanation as to the marks upon the prosecutrix’ throat, neck and back of hеr ear.
The appellant offered the evidence of his brother, who stated that the prosecutrix had on two prior occasions willingly had intercourse with him. He offered further testimony of the prosecutrix’ poor reputation for virtue.
The evidence will be discussed more in connection with appellant‘s contentions advanced in brief and argument.
He first contends that the overwhelming weight of the evidence in the case shows that the prosecutrix consented to the act of intercourse. He argues that her denial that she and Jack Harper were living in adultery in the aрartment is so patently untrue as to require that her testimony concerning the rape be disbelieved. He argues further that because she accepted a date with the appellant‘s brоther, knowing him to be a married man, her denial that she engaged in the several acts of intercourse with him should be rejected along with her denial that
The appellant next contends that the trial court erred in not granting his motion for new trial because of newly discovered evidence.
The appellant testified that the prosecutrix joined with him in drinking beer both before and after they left the apartment. The prosecutrix testified that there had been no beer in the apartment but that the appellant had drunk a can of beer during the course оf their automobile ride.
On the motion for new trial, the appellant offered the evidence of certain policemen who had come to the prosecutrix’ apartment in response to her first call for help to the effect that they had seen certain beer bottles in the apartment and that the prosecutrix had admitted that she had “had a beer with” the appellаnt.
This testimony would certainly have been admissible as rebuttal testimony on the main trial had it been offered. The appellant‘s counsel testified on the motion for new trial that he was under the impressiоn that the policemen would be hostile to the appellant and that he had not asked these policemen what their testimony would be until after the conviction of the appellant.
The policemen testified at the hearing on the motion that they had made no effort to conceal from the appellant or his counsel any information which they had on the case аnd that they had never refused to discuss the case with anyone.
Recently, in Gephart v. State, 157 Tex. Cr. Rep. 414, 249 S.W. 2d 612 (a death penalty), we said, “No defendant ought to be permitted to speculate on the results of a trial, to neglect to summon his witnesses, go to trial, hoрing to secure an acquittal, and, in the event of failure to do so, then bring forward the witnesses to be used as a means to secure a new trial.”
We have concluded that the appellant did not exercise due
The remainder of the alleged newly discovered evidence was merely cumulative to the testimony offered on the original trial as to prosecutrix’ reputation for virtue and would not call for the granting of a motion for new trial.
The judgment is affirmed.
ON APPELLANT‘S MOTION FOR REHEARING
DAVIDSON, Judge.
In his motion for rehearing, appellant presses upon us his contention that we erred in holding that he was lacking in diligence in not discovering, prior to the motion for new trial, the testimony of the policemen as to the finding of the beer bottles in thе apartment of the prosecutrix and the latter‘s admission that she had drunk beer with the appellant.
Appellant calls attention to the fact that we stated in our original opinion that the testimony of the policemen would have been admissible upon the main trial. He insists, therefore, that, because of the particular facts of the case under which it could hardly have been foreseen by him or his counsel that the testimony of the policemen would have been material to his defense, we should not apply the strict rule of diligence which we have here applied.
Appellant‘s insistence is not without its appeal. Such, however, could be said of most all cases involving newly discovered evidence.
We have concluded that the disposition made of the question of newly discovered evidence does not rest, alone, upon a lack of diligence to ascertain the absent testimony.
Newly discovered evidence warrants the granting оf a new trial when, among other things, it appears that a different result would likely have been reached had such evidence been presented at the trial. Henson v. State, 150 Tex. Cr. R. 344, 200 S.W. 2d 1007.
Here, the trial court, in the exerсise of his discretion, upon
To overturn that conclusion, we must find an abuse of discretion by the trial court. This we are unable to do, under the facts presented.
Appellant‘s motion for rehearing is overruled.