46 S.W.2d 308 | Tex. Crim. App. | 1931
Lead Opinion
The offense is rape; the punishment, confinement in the penitentiary for a period of five years.
The jurisdiction of this court to review the action of the trial court, where the accused is not in jail, is dependent upon a proper recognizance or appeal bond, the requisites as well as the form of which are set out in article 817, C. C. P., Acts of 1925. It is necessary that the recognizance or appeal bond show that the appellant shall obligate himself to appear before the court in which he had been convicted “from day to
The appellant being at large under the defective recognizance, this court is without jurisdiction and the appeal must be dismissed.
The appeal will be dismissed with permission to correct the fault in the recognizance, under article 835, C. C. P. Upon such correction and notice thereof to this court within fifteen days from this date, the appeal will be reinstated. Following Jones v. State, 110 Texas Crim. Rep., 542, 9 S. W. (2d) 347.
The appeal is dismissed.
Dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON REINSTATEMENT.
The record having been perfected, the appeal is reinstated, and the case considered on its merits.
The offense is rape by force; the punishment, confinement in the penitentiary for five years. The appellant challenges the sufficiency of the evidence to sustain a conviction. The evidence is very voluminous and we deem it only necessary to state a portion thereof.
The prosecutrix testified that she had known appellant for some time; that he had paid attention to her; that on the day of the alleged offense, she and several other girls had played hookey from school; that they had gone down to the camp grounds on the west side of the town of Hereford. That the appellant and other boys were riding in an automobile and asked them if they would go riding with them; they had refused said invitation several times but finally she and Maybelle Witherspoon and Norene Vaughn consented to ride with them if they would get them back to town about the time the schools were supposed to close. She testified that she and the other two girls who w’ent with the boys were dressed in overalls; that when they got in the car with the three boys they thought the boys would take them to town; that after getting into said car and it had started, two other boys jumped on the running board of the car and got in the car; that instead of taking them to town they drove off on a country road and over the protest of the girls refused to take them to town. She testified further that after they had gotten out several miles on this side road, some of the boys pulled one of the girls with them out of the car, over her protest, and two of the boys also got out of the car and the car moved on. A little further on the other girl who was with the prosecutrix was also pulled out of the car. She testified that when the girls tried to get out of the car, the boys rolled up the windows so as to prevent them getting out. She testified that while
Miss Norene Vaughn, a witness for the state and one of the girls who had gone riding in the boys car, testified substantially as the prosecutrix to what occurred up to the time she was taken out of the car. She further testified that after they had taken her and Maybelle Witherspoon out of the car that they had succeeded in getting away from the entire group of boys and went on down to the main road and walked to town. She further testified on cross-examination that that same night after she got back home she saw Etoyle Joiner, the prosecutrix, in town and she looked excited and looked like she was crying; that she told her the way Buddy Jones had treated her and that they had pulled her clothes off of her and that her nose had bled, and that some of the boys held her down and Buddy Jones “got to her” and had intercourse with her. She testified that she was positive what the prosecutrix said to her and that it was serious and made an impression on her mind. That the next morning she saw Etoyle Joner, the prosecutrix, in the office of Elmer Davis, county attorney at that time.
Cordelia Joiner, sister of the prosecutrix, testified that her sister was 16 years old at the time; that when her sister came home the day the offense was alleged to have been committed that she noticed that Etoyle Joiner was nervous, excited, and crying when she came in; that she knew there was something wrong; that she didn’t say anything immediately but while the witness was cooking supper that Etoyle Joiner came into the kitchen and told her about it. She gave her the name of all the boys, told her where they took her, and told her about the boys pulling May-belle Witherspoon and Norene Vaughn out of the car, and that the next morning she had occasion to see her sister’s body and limbs and she had bruises on her right limb above her knee; that on her other limb there was a long scratch, and when Etoyle arrived on the night before she complained very much of being sore; that she had occasion to see the pair of bloomers her sister was wearing and they were torn, the seat was almost torn out of the bloomers.
A doctor testified that the next morning after the occurrence, he examined the prosecutrix’s private parts and found some laceration and some blood there; he could not tell what the blood was, it might have been menstruation blood and it might not have been, but that it was flowing from the laceration; that it was blood from the laceration; he stated that he could not tell from the examination he made that she had been penetrated by a male organ, but that he could tell there had been some irregularity there and some stretching and tearing of the mucous membrane.
All of the boys who were alleged to have been in the party testified and did not deny substantially what was stated by the state’s witnesses as to what occurred, except that they denied pulling the girls out of the car and denied knowing whether the appellant had had any intercourse with prosecutrix or not. Loys Carmichael also denied that he and appellant tried to pull prosecutrix’s clothes off.
The appellant testified in his own behalf that after the other two girls had gotten out of the car that the prosecutrix and Loys Carmichael and himself then remained in the car and that they went to about one-half mile north and west of where the others had gotten out and stopped the car there. As to what took place, he stated: “Well, I was trying to have intercourse with Miss Etoyle and she told Loys Carmichael that if he would get out she would let me have it, so he got out of the car and she told him to walk down to the corner post and he walked down there, but I did not have intercourse with Miss Etoyle there; she began to beg and plead with me just as soon as Loys got out of the car; I didn’t say anything further to her. I just quit and gave it up right then. No sir, I did not take her clothes off. I did take one of her bibs to her overalls down, but I could not go any further then. Then, she got to talking to me and as I have previously stated, I just quit.” He also testified that some time previous to that that he had intercourse with prosecutrix at a different time and place.
Bills 1 and 3 are wholly insufficient. They recite that counsel for the state asked, prosecutrix if she undertook to tell her sister Cordelia anything about what had happened. The question was objected to on the ground that it was hearsay, and that the state had not shown such communication to be a part of the res gestae. Then follows in each of said bills an inquiry of prosecutrix as to where she had been and what she had done between the time appellant had let her out of the car until she talked to her sister. This is presumably incorporated in the bills to inform this court whether the trial court was correct in admitting in evi
Bill of exception No. 2 shows that while the jury were out and deliberating, considering their verdict, said jury through its foreman, made the following request in writing and presented same to the court, to-wit: “Are we authorized to recommend a suspended sentence in this case.” To which question, the court replied, “No”, The bill is qualified by the court without exception to the effect that there had not been filed an application for a suspended sentence. As qualified, no error is shown.
Bill of exception No. 4 showed that the jury trying the case was retired from the court room for some purpose and called back into the court room, at which time only eleven jurors returned. That one of the jurors did not return with the balance of the jury panel and his absence was not discovered until after the balance of the jury panel had been seated in the court room, at which time the court discovered one juror missing and called the sheriff’s attention to same. The sheriff directly returned to the juror’s quarters at which time he met the juror coming down the stair from the jury sleeping quarters. It is further shown in said bill that the juror Galley, if sworn, would have testified that he saw no person, communicated with no person, received no communication of any kind, read no newspapers, and had no other communication with any person while he was absent from the balance of the jury panel. It is also shown that the said juror was not absent from the other eleven men more than two or three minutes. The bill further shows that the matter was duly presented to the court on motion for new trial and which motion was overruled and was excepted to. From the facts as shown by said bill, we do not believe that he appellant could have suffered injury or prejudice by reason of the separation of the juror from the balance, and that the trial judge did not abuse his discretion in refusing a new trial on that ground.
If the separation of the jury, or of a part of the jury, is momentary only, and it is shown that defendant could have suffered no injury or prejudice thereby, a new trial will not be granted on that ground. Branch’s Penal Code, sec. 581, p. 299; Jenkins v. State, 41 Texas Crim.
Bill of exception No. 7 complains of the action of the trial court in sustaining the objection made by the state to the following evidence by a Mrs. Clara Shore, after both the state and defendant had rested their main case and the state had offered its rebuttal testimony. The bill shows that if the witness had been permitted to testify, she would have testified that the complaining witness, Etoyle Joiner, boarded and roomed at her home in September, 1929, until about a week prior to February 28, 1930, and that a short time before Etoyle Joiner left the Shore house that Mrs. Shore went into her room and there found on her dresser a pasteboard box and in this shoe box she found a small box containing two condrums called Merry Widows. The bill further shows that upon cross-examination she would have testified that at the time she found said shoe box and condrums, there were four other members of the family, herself, her husband, and two grown daughters, all of whom had access to all of the house; that she never talked to Miss Joiner about it, and did not know of her own knowledge that they belonged to Etoyle Joiner. The prosecutrix not having been asked about the matter sought to be proven, this evidence could only have been offered for one purpose; that is, for the purpose of affecting the character of the prosecutrix for chastity. The charge against appellant, which was submitted to the jury, was a charge of rape by force and under the evidence the issue of consent is not raised. The accused himself testified that the prosecutrix did not consent to his having intercourse with her and that he desisted and had no sexual intercourse with her on the occasion charged in the indictment. We believe the evidence sought to be introduced was inadmissible under the decisions of this court.
We quote from the opinion by Judge Hawkins in the case of Linder v. State, 94 Texas Crim. Rep., 316, 250 S. W., 703, which was a case wherein the defendant was charged with assault with intent to rape. The part of the opinion quoted shows the issue: “Prosecutrix was asked upon cross-examination, if she had ever kissed or permitted any one to kiss her. She admitted having kissed two young men to whom she had been engaged. She denied ever basing kissed Olan Weems, or having permitted him to kiss her. No objection was interposed by the state to these inquiries of prosecutrix. Appellant proposed to prove by Weems that he had kissed her and she him. Objection by the state was sustained. The bill of exception shows that appellant was offering Weems for the purpose of impeachment, but we understand he contends in his brief that it was also admissible on the issue of prosecutrix’s character for chastity. The credibility of a witness cannot be thus attacked. For the latest expressions from this court upon this subject, together with citation of authorities, see Barnes v. State, 90 Texas Crim. Rep., 51, 232 S. W., 312; Hays v.
The appellant excepted to the paragraph of the court’s charge wherein he defined “force” necessary to constitute rape in that the definition used by the court is too restricted. As stated before in this opinion, there was no issue made on the trial below as to the refusal of the prosecutrix to give her consent to any act of intercourse between her and appellant, nor was there any issue as to the lack of resistance on her part. The issue being as to whether there was any act of intercourse at the time alleged. The court charged the definition of “force” in the language of the statute, article 1184, P. C., to the effect that to constitute rape by force the defendant must have ravished Etoyle Joiner, the alleged injured female, by having carnal knowledge of her without her consent and against her will by force and the force used, if any, must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. There being no isue in the case as to the lack of resistance, the definition as given by the court was sufficiently explicit. Anschicks v. State, 6 Texas App., 534; Favors v. State, 20 Texas App., 155; Fitzgerald v. State, 20 Texas App., 294; Jenkins v. State, 115 Texas Crim. Rep., 53, 27 S. W. (2d) 164; Branch’s Penal Code, sec. 1780.
Bills of exception 5 and 6 are in question and answer form. No certificate of the trial judge showing the necessity for such forms appear
While the evidence in this case is conflicting, there was sufficient evidence offered on the part of the state to warrant the trial court in submitting the issue as to the guilt or innocence of the defendant to the jury. The jury having decided adversely to the appellant, we see no just reason to disturb said verdict.
No. reversible error appearing, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Rehearing
ON MOTION FOR REHEARING.
In the motion for rehearing it is again urged that the evidence is insufficient to> support the conviction. Set out in the motion are many excerpts from the testimony of prosecutrix, which taken alone, would cast doubt upon her claim that appellant had intercourse with her. We have again scrutinized the statement of facts, having particularly in mind those parts of prosecutrix’s evidence especially stressed in the motion. When taken in connection with her explanation of those very things, and her entire testimony, we think this court would not be justified in disturbing the verdict.
In one part of prosecutrix’s testimony given on cross-examination she said: “In response to your question, ‘And then you commenced to shove him off and begged him and Buddy says, ‘That is all right, if you feel that way about it, I’ll quit,’ well, I don’t know whether he said ‘If you feel that way about it, I’ll just quit,’ but I begged him and asked him to quit and he did quit. When the other boys came to the car, he quit.”
From this statement it is urged that no rape is shown to have occurred.. The statements of facts reveals that prosecutrix makes no claim that a ravishment resulted from the incident referred to. She says appellant did not on that occasion succeed in his attempt; that by begging and resistance she had persuaded him to desist. We understand from her testimony that when two other boys (appellant’s companions) came back to the car, they encouraged appellant to go on with his efforts; and she asked them to go away, believing if they did so she could again prevail upon appellant to let her alone. It is her claim that it was during this second attempt on the part of appellant that he succeeded in penetrating her person despite her resistance and entreaties.
The motion for rehearing is overruled.
Overruled.
