145 Tex. Crim. 208 | Tex. Crim. App. | 1942
Lead Opinion
Conviction is for an aggravated assault, punishment assessed being a fine of $1,000.00 and two years in the county jail.
The indictment contained two counts, the first charging that appellant made an assault upon Evelyn Cox with intent to have carnal knowledge of her, she being under eighteen years of age, and not appellant’s wife. The second count charged that appellant did attempt to have carnal knowledge of the said Evelyn Cox. Upon the request of appellant for election the State elected to prosecute under the first count, but the court finally submitted the case to the jury only upon the issue of aggravated assault based upon Subdivision 5, Art. 1147 P. C. which makes an assault aggravated “when committed by an adult male upon the person of a female.”
The evidence shows that appellant was a man about forty-five or forty-six years old, and Evelyn Cox was a girl not yet sixteen years of age.
“Then he (appellant) said he wanted me to go up in his room and he would show me his papers — you know — that he was an FBI man. And said he wanted to tell me more about this- blonde headed woman. And we went up there and he sat down on the bed and I sat in a chair and he asked me to come over to him and I wouldn’t do it. I mean he asked me to come over to where he was, and sit down on the bed with him, and I wouldn’t do it and he insisted and I still wouldn’t. So he talked about the blonde; just the same thing again. And then he asked me to come over again and I still wouldn’t, and I told him I was going to leave and he told me that I didn’t have anything that he wanted and I got up and went to the door; I was going to go; and he ran over and stood against the door and I told him to let me go and he put his arms around me and pulled me up to him and I pulled away and he asked me to marry him and I told him he was old enough for my father, and he tried to get .me to kiss him and I wouldn’t do it, and I told him to let me go and he told me to sit down in the chair and he would let me go and I wouldn’t do it and I found out he wouldn’t let me go until I did and so I sat down on the chair and 'he was putting on his coat and vest when the officers walked in. It was not agreeable with me for him to put his arms around me and pull me up to him. I had not said anything to him that I thought would even give him that impression. At the time he caught me and pulled me up to him I was scared and embarrassed. * * * That was the first time I had even seen Joe Reeves. I have known him about two months now. That was the first time I had met him, but now I have known him about two months. I had never seen him before. While we were there in the room he didn’t make any immoral suggestion to me as to wanting me to do anything or anything like that. I went up there to the room of my own accord.”
Appellant did not testify. The evidence further shows that appellant was not an FBI man. Two officers went to the room where appellant had taken the girl. When the officers entered the room the girl was sitting in a chair and appellant was standing between her and the door putting on his vest. One of the officers said the girl appeared to be very frightened.
■ By bill of exception number one appellant appears to complain because one of his attorneys was engaged in the trial of
Bill of exception number two presents no error and does not call for discussion.
Bill of exception number three raises a question as to the sufficiency of the evidence, it being a complaint at the refusal of a peremptory instruction of acquittal. The evidence heretofore recited supports the verdict and judgment. While the punishment assessed was severe for an aggravated assault it was within the province of the jury to assess it and we are without authority to substitute our judgment for that of the jury upon such question. Notwithstanding appellant’s statements to the girl as recited by her, there was doubtless in the jury’s mind the thought expressed by the canny Scotchman, “I can’na hear what ye say for thinking of the deeds ye do.”
In bill of exception number four appellant complains of an argument of the attorney representing the State. The bill itself recites that no objection to said argument was made at the time of the trial. This nullifies the bill. See Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485; Salinas v. State, 113 Tex. Cr. R. 142, 18 S. W. (2d) 663; Herms v. State, 129 Tex. Cr. R. 448, 87 S. W. (2d) 717; Crowley v. State, 117 Tex. Cr. R. 372, 35 S. W. (2d) 437. The trial judge did not certify that the argument occurred. He says he listened to all of the arguments and does not remember anything occurring as recited in the bill.
Appellant made application for continuance based upon the absence of a witness. The application is not in the record independently but is set out in full in bill of exception number five. The only diligence to procure said witness is set out in the following language:.
“* * * that this defendant has used due and sufficient diligence to procure the attendance of said Nick Batellio as a witness in his behalf herein, in this that the defendant had issued a subpoena for said witness and said subpoena has been returned by the proper authority, unexecuted, with the notation by the officer, in substance, that said witness is temporarily out of McLennan County, visiting with his sister.”
The application for continuance was sworn to before appellant’s attorney. This is not permissible. Authorities are numerous that an application for continuance, or affidavit in connection with motions for new trial should not be sworn to before either attorneys for the accused or for the prosecution. See Smith v. State, 97 Tex. Cr. R. 6, 260 S. W. 602; Melton v. State, 78 Tex. Cr. R. 539, 182 S. W. 289; Hall v. State, 79 Tex. Cr. R. 463, 185 S. W. 574; Scott v. State, 65 Tex. Cr. R. 40, 143 S. W. 610; Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 567; Kellum v. State, 91 Tex. Cr. R. 664, 240 S. W. 1109; Siebe v. State, 92 Tex. Cr. R. 605, 244 S. W. 1013; Steele v. State, 87
The judgment is affirmed.
Rehearing
ON MOTION FOR REHEARING.
Appellant has filed a vigorous and, we think, unwarranted attack on the original opinion in this case in the form of a motion for rehearing. It is admitted that this court has authority to review the findings of the jury and to set aside their judgment if the punishment be excessive (Calhoun v. State, 214 S. W. 335; Gipson v. State, 161 S. W. (2d) 1088). What is excessive punishment may not be determined by this court on our idea of an appropriate penalty so long as it was one which the jury had the power to assess. .
Appellant has presented a number of cases which he considers important and then makes this statement: “After reading the above opinions of former Judges of this Court I challenge this Court to repeat such opinion as heretofore handed down.” The only case which we consider in point is Robinson v. State, 7 S. W. 531, which is an opinion by Judge Hurt. The appellant in that case was drunk and raised a fuss with Matilda Jones, a female. Having been ordered off the premises by Matilda’s employer, he waylaid the woman and when she left the premises to go to her home, he called for her to stop and when she refused he seized her sleeve and jerked her nearly down, tearing off the sleeve of her dress. He did not strike the witness nor did he attempt to do so. The jury assessed a penalty of $500.00 and twelve months in jail. There was a variance between the information and complaint so that the construction given to it was that only a simple assault was charged. There was no allegation whatsoever that the accused was an adult male person. It was therefore held that the penalty assessed was excessive. Definitely it was, because an aggravated assault was not charged and no such penalty could, under the law, be assessed for a simple assault. Neither would the evidence support an aggravated assault had it been properly lodged against
In the case before us, appellant is properly charged with aggravated assault and the evidence supports it. The jury did not exceed the penalty which the legislature said may be assessed under the indictment and under the evidence of the ease. There is nothing cruel about the penalty, as that term is used in the Constitution, and we are unable to find support for the contention that this court has power to set aside the jury’s decree. It may be that the jury’s verdict was a harsh one but they had the witnesses before them and were in a better position to judge of the facts than this court could be. Logically, the law entrusted them with that duty and responsibility and it is only for this court to say whether or not the evidence will authorize their verdict under the charge.
Appellant’s motion for rehearing is overruled.
