*1 248 Jones, Jr., v.
J. T. State. 25239. 1951. May 2, No. Rehearing Denied June Black, Judge Presiding. Hon. J. R. Scarborough, George
Larry Overshiner, Abilene, W. appellant.
Wiley Caffey, Attorney, Abilene, George District P. Blackburn, Attorney, Austin, State’s for the state. Judge.
DAVIDSON, offense; punishment, confinement Rape by *2 force is penitentiary for life. in the upon automobile 3, 1950, a tire dusk on October About Abilene, unaccompanied, flat near driving, went
prosecutrix was and along automobile in his Appellant came lived. where she accepted. After a time prosecutrix assistance, which offered his ap- and degree difficulty, was removed the tire some and with get re- it car, pellant, a service station carried it to his re- appellant paired. returned In minutes about fifteen upon paired placed the automobile. tire and grab- According testimony appellant prosecutrix, get placed her into by or made her and force and assault bed lonely onto a his He then drove some distance automobile. there, by road, force and country stopped the car and where threats, returned raped completion the act he her. After the threatening automobile, her at her life the time anybody. com- if she told Prosecutrix her car home and drove happened. police and municated to her what had husband a doctor were called. morning prosecu-
Appellant following and was arrested the identification, positively rapist. trix prosecutrix identified him as the In this was corroboratetd facts and circumstances which need not her detailed. be
Appellant guilt upon alibi denied his and relied an as an defense, affirmative as to which there was some corroboration. province It was the issue thus of the to solve the fact presented, verdict, finding support testimony, and their in the will not be disturbed.
Appellant being him, employ represent unable to counsel to appointed young attorneys Abilene, the trial court three of the Texas, bar, as his counsel. appears against appel- returned indictment was thereafter, 13, days
lant on October on October Three arraigned, attorneys he was at which time three were appointed. endeavoring appellant At that to secure time was 16,1950, counsel of his own selection and it not until October was rely upon attorneys that he would appointed his he advised their services. proceeded a trial week thereafter. was called
The case trial, appellant presented an called for the case was When effect, sought delay which, application continuance and reasonable could have sufficient his the trial until witnesses, especially prepare for the trial interview time to feeling light publicity public and the in the ground. statutory application not based was discretionary entirely powers of the It was addressed *3 reject accept or province It was of court to trial court. the that rejecting motion, the and his in same is reviewable action only manifestly this to determine whether his action is so court wrong of as to an abuse discretion. evidence light whole,
In we are to the of the record as a constrained agree mentioned, error, respect is in not that reversible the reflected and that the court abuse with did not his discretion thereto. reference change chiefly A motion to venue the case the was based detailing notoriety by newspaper what the articles in
purported preju- to be the of the case and other claimed facts dicial statements. entering ordinarily
One of the into determination factors changed as to when the venue of a case is the view- should be point prospective jurors jurors the as well as selected try therefrom num- to the case. This record does not the reflect regarding case, prospective jurors opinions ber the who had challenges parties, the respective number of the exercised any touching or jury other facts selection of the that tried the case. is, among exceptions presenting
The bill of things, qualified other by the court as follows: juror “The every Court excused stated or left the im- that pression opinion that he had an in the case and as he recalls juror no any prejudice testified that had or in bias the case during exception jury at no time was an the selection of the single failed excuse to objection Court made because or juror.” qualification, is having accepted appellant, the above thereby.
bound against appellant, prejudice existed If it be conceded that prejudice any testimony such yet that is an absence of there way its box. found into the alone, newspaper publicity, does not has been held that change prejudice venue. v. require Walker
establish or State, State, 455; v. 124 Tex. 60 S. 2d Outlaw Cr. R. W. 2d 125 Tex. Cr. R. 69 W. S. agree light presented,
In the here we cannot the record refusing judicial that the trial court abused his discretion change the venue of case appellant pre- day attorneys On set for trial the- among alleged, sented the trial court a motion in which it was things, they opportunity talk with had not had an prosecutrix might and ascertain from claimed the facts what she be, interrogate they intelligently pros- order pective jurors. prayer was for an the trial court order from permitting prosecutrix said talk and that *4 legal right be instructed that the had the to talk with her and to ascertain from her knew about what she testimony the case and upon what her would be the trial of the is appear, certifies, It made to and the trial so court process the was not under under so as to come the jurisdiction that, subpoenaed by the court as witness and fact, require reason of authority such he was without to the wit- appellant’s to questioning ness submit to examination or exceptions The counsel. bill of further certifies that the that, concerned, they court advised counsel in so far as was complete permission had his to talk with the witness. largely discretionary
Such matters as these come
within the
powers
However,
judge.
State,
of a trial
in Lee v.
as we said
100 Tex.
R.
Cr.
“We no rule of which would the trial seeking compel in court to witness for either side to talk to so, unwilling was to do other side if the witness
counsellor holding the con- we cited to authorities nor have been trary view.” this unwilling agree into error court fell that the trial
are We refusing grant motion, requested. as in presented jury misconduct. complaint relates to
The other alleged one of the shown the affidavit of is The jurors. misconduct contradicting jurors made affidavits The eleven men- juror. the affidavit one Other than of the the statement tioned, hearing of the mo- introduced no evidence was accept the was authorized new trial. The trial court tion for shown that jurors was which the eleven affidavits alleged occur. did not misconduct are over- appearing have been examined Other matters discussion. ruled without remuneration, repre- who, young men without three The com- appointment court are be appellant at the sented duty as performance of their for the and faithful
mended able only appellant not lawyers representation and for the court. this court but judgment appearing, is affirmed. error No reversible Opinion approved by court. MOTION FOR REHEARING. APPELLANT’S
ON Judge. BEAUCHAMP, diligent appellant filed attorneys representing have very argument be- rehearing in his presented oral
a motion for half. questions presented in motion were four
Three of the relating original to the opinion. treated in the *5 argument attorney was not discussed of the district considered opinion not now it was then and is because not importance. attorney closing argument referred to the
In his the district pure every prosecuting representative innocent witness as Taylor County This woman in who did not know accused. argument brought jury. It was not an no new fact before inflammatory It was nothing it. about see with merely force. We judge instructed making speech. The cautious judge did not it. The fact to consider argument. effect of the is no the harmful evidence attorneys. might, complaining merely pacified, far as as every ques- possible It is nor to write on neither advisable brought appeal do on it is not custom to tion forward importance. might unless so be viewed some carefully on The entire record this case was considered proper original opinion and we remain of the submission Appellant’s disposition for re- was made motion hearing is overruled. Taylor
Mildred and M. Smith C. v. State. February No. 25061. 1951. Rehearing Denied June