*1 Atty., Dist. Edwin Clayton, William E. THOMPSON, Appellant, Paso, Atty., Otis R. Berliner, El F. Dist. Asst. Austin, Atty., Douglas, and Leon B. State’s State. Texas, Appellee. STATE No. 30522. WOODLEY, Judge. Appeals of Texas.
Court of Criminal punishment, rape; The offense is ten April 1959. years. Rehearing Oct. On Motion Exception complains of Bill of No. 1 declining to action of discharge
order mistrial the entire jury panel juror, the six after one chal- sworn, selected and who was not defense, lenged either State was excused the court. authority judge, acting The trial under State, Tex.Cr.App., of Lee v. from the called Katz Juror room excused him under the follow- ing circumstances: empaneled juror sworn and was examined both sides accepted juror. as the Then sixth fifth accepted juror was and sworn. point judge At received Katz that he stating note Juror gave change desired to two answers Calamia, stating “(1) might em- It Mr. me to Ber- barrass find Mr. Ed Attorney). (2) (Assistant liner District suspended My answers with reference to sentence.” Appellant’s counsel moved for mistrial words, juror’s basis but agree suggestion declined to to the court’s say juror whether he wanted the called back to establish the correctness of statement; the court if he wanted if discharge juror; he wanted the discharge juror if what was court to correct; in the note was and wheth- stated Katz agreed er release Juror mistrial. go without a Calamia, Garbern, took motion Joseph Y. The court A. Daniel mistrial Paso, Martin, and the six El E. advisement selected Knight, under W. W. Jack Houston, together until remained next- jurors
746
scruples against
renewed
penalty.
Black
morning,
time
the
at which
objected
jeop-
his motion
mistrial.
stated
would claim
for
ardy if
panel
the
was excused.
entire
ex-
was then called
Katz
Juror
juror
by
by
challenged by
counsel
amined
the
was
the State.
acquaint-
testified that his
He
551,
State,
Houston v.
162 Tex.Cr.R.
so close
Berliner had been
ance
Mr.
643,
Judge
in his
Davidson
his side
would be
leaning
that his
toward
dissent
took
position
trial
the
arriving at a
and would influence him in
judge
authority
was without
lawful
to
if
de-
he testified that
verdict. Also
empaneled
excuse an
juror,
when
and that
not
guilty
fendant
would
was found
conditions or circumstances
which
arise
suspended
be in
favor of
sentence.
make it necessary
empaneled juror
that an
be
proper
excused
legal
method
Appellant
motion for mis-
renewed his
panel.
would
to
Judge
excuse
overruled,
juror
trial
entire
was
Davidson reiterated his view in Lee v.
by
was
the state-
excused
court with
State, Tex.Cr.App.,
114, 117,
301
jurors
S.W.2d
ment:
are
to
“Both sides
entitled
joined
but
the affirmance
author-
prejudices.
do
am
not have
ity
the majority holding in
v.
juror
authorities
Houston
excusing
on the
this
State to
contrary.
by
State,
laid
[Tex.Cr.App.]
down
Lee v.
but was not lenged the State cause. Had judge the trial ordered the to State, 512, 1875, In Mitchell 43 Tex. proceed jury, appel- with Katz on the jurors four selected lant’s challenge to failure him for cause (murder) an affidavit filed when applicable would have made the authori- stating them that one of had said holding ties challenge that a based on Mitchell; jury try wanted to on the to prejudice or bias be waived. guilty he was and that he wanted hang him. object say
To not remaining jury Katz Juror in the face of the not defendant would consent not in record. He did court’s announced intention of aside setting cause, juror but challenge words juror, whereupon the permitted writing of the note from the time attorney the district withdraw ac- to him in- made known ceptance jury himof com- only Katz not but entire sisted that venire, pleted from the ex- defendant discharged. jury panel be cepting. complain not The bill does Supreme Court Texas held that had been jurors who selected should five only it was within the discretion of discharged have been Katz because Juror trial court but was its duty to purge jury room with them. It had been jury juror and set aside the whose complains only panel that the entire presence on the would taint the ver- a mistrial excused and ordered. dict, injury and that no was shown. In Black v. juror was S.W. called Under authorities cited we find no after he box excused sent a Exception note to in Bill reversible error No. saying judge he had conscientious Thompson. pistol, We mentioned a shows evidence ap- midnight support nothing find in the record to about an residence El Paso pellant’s year old theory that this was calculated and was admitted *3 and convey her mother did that with there child who resided Thompson” was mother a The married year sister. man. “Mrs. and a three old may or she appellant’s children have wife been the two at and home mother, other lived his some who by maid have being a were cared Thompson. does The record in Mexico. ques- show and we cannot that assume slept maid, prosecutrix, The who is appellant’s tion referred to wife or appellant found living in the room where question faith. was asked in bad and only her brassiere her in clothed pants. complaint as to ap- lating identifying appellant had minutes Within a few pellant up, in a testi- line of his in view year nineteen with the sexual intercourse mony that he was man had sexual who spoke only Spanish, which girl old her, error relations with If is overruled. understand. did not appellant’s it was rendered harmless testimony. which, Appellant pistol armed with a placed on prosecutrix, he according employer She testified table near the couch. mother of in the children the home where anything” him do letting she “was not appellant found with and had intercourse pis- get ahold but when “tried to maid, gone testified that out she had any “oppose more.” him tol” she did not with on occasion one accompanied Appellant by the Mexi- left to motel her drove and asked girl he had never seen before can out. companion intercourse both “Q. you I other And what A. And her the automobile while the do?
with in I driving. Golly! said Oh said: ‘If I was ‘No.’ going be- to fool around would do it reported immediately mat- girl to, cause I wanted and not because was ter, by demonstrating first forced into it.’ toy pistol, year and then girl old employer shortly who came in to her “Q. satisfy And him? did that seem to and the little let girl returned she was A. No. her in. ” ** * “Q. And he do what did having rela- admitted girl both occasions and tions with interrupted. point Ap- At this companion inter- testified he had pellant’s “A counsel stated man is in the car. Both testified course with ” * * * here for an offense consented, and denied that girl objection. sustained pistol exhibited or used made. threats of a In the absence motion to strike quoted, perceive we above the case as The court submitted one which would authorize a no error reversal. the State elected to by rely upon the act of intercourse remaining claims of error have bees house. and are considered overruled. attorney, questioning The district appellant’s judgment who was officer search affirmed.
^48 Appellant’s ground Another reversal
On Motion Rehearing found at
tempted forcibly inter have sexual course with another woman at a tourist DAVIDSON, Judge. separate court on another and occasion. A concluded majority have of this court P.C., Ed., Branch’s p. 2d Sec. Vol. affirming that we erred for the that a reversal should be ordered With my the above conclusions brother following reasons: MORRISON, Presiding Judge, concurs. *4 exception 2, By hill of it is # Accordingly, appellant’s motion re- that testi- before introduction of the hearing granted, is the affirmance is set mony hear- presence and and out of the aside, and judgment the is now reversed ing appellant sought have the of and cause is remanded. the the trial counsel court admonish state’s and that the state’s married The writer is convinced that evi- the should not witnesses as well counsel as dence is support insufficient to the con- prove mention' the fact such reason, viction. For that me trial of the case. paramount, and, reverse, supporting conclusion, present ' the notwithstanding The record reflects following independent views: request. proof such the was made that appellant’s officer more went to home on The rape indictment charged by force than one there talked with occasion and and threats. The case was submitted to a Thompson (appellant’s Mrs. Otis name the jury solely upon the law of threats. being Thompson). Otis Any question thereby of force was elim- of two other witnesses case, inated from the as also removed susceptible the same construc- of jury’s from the consideration. tion. n part connection and as a of his Appellant objected proof to such charge upon threats, the law of the trial showing that he was married. gave following instruction to jury: objection and motion for a proof mistrial of such because were over- “ * * * you case, in- are ruled. structed that to constitute In the case of recent Johnson threats, the defendant must have 204, Torres, ravished Idelia alleged A.L.R.2d we had occasion to review injured female, by having carnal admissibility of evidence in a knowledge against of her her will and tape showing case that the accused was without her consent the use of married, length and we there discussed at threats, used, and the threats if any, question. prior cases must have might been such as have proof there reached was that conclusion reasonably created in mind of ordinarily fact such of inadmissible Torres, just said Idelia of fear admissible only and becomes when it tends her, and harm in view some issue in the case. to solve of the relative par- condition of the health, strength, ties toas and other The conclusion is here reached * * of the circumstances case under instant appellant was married and lived with charge provisions That followed the of prejudicial wife error. Vernon’s Ann.P.C. covering He evidence divan. then removed the bed Upon the trial of the prose- began loving petting involv- transaction than one more showed cutrix, during removed which time charge ing panties and the child Seeing brassiere. room, Donna told her jury’s restricted leave, which she did. guilt to appellant’s consideration Thereupon, appellant . removed his which, according coat first transaction at trousers engaged in an act of occurred testimony of prosecutrix. intercourse with o’clock about 11:30 the Zabel residence 25, 1958. night January completion act, appellant After of the and dressed and left to sus- sufficiency evidence automobile, waiting must appellant’s conviction tain which a companion male un- and tested transaction to that stricted seated. con- limitations definitions der the espe- court, charge tained *5 car, After reaching the which was out. cially portion above set parked house, prosecutrix near told appellant she go wanted back to the to nineteen-year-old prosecutrix, house to her coat. While illegitimate an American mother Latin in waited the car returned to the she neither age, could years of child two and got house her from coat the closet English. On speak understand nor occupied in by the bedroom children. prosecutrix was at question, the night in they began cry When to she told them capacity of Zabel in of Mrs. the home would she come back soon. chil- Zabel’s two baby-sitting for Mrs. age, and dren, Donna, years of prosecutrix voluntarily then had been Marsha, years She age. four turned to the car and left with employ three for about Zabel’s in Mrs. companion, and his later who did in slept divan on four weeks. She or driving. room, adjoined bed- living which developed foregoing facts were and the two children. Zabel room of Mrs. testimony the direct and admis- prosecutrix. sion of o’clock, m., p. prosecutrix About nine night, retired for and the two children prosecutrix, On cross-examination of bedroom children their she added her nothing to direct panties only in her clothed prosecutrix, in so far as of the threats ante- brassiere, eleven on the divan. About cedent to act of intercourse was con- the house door of o’clock a knock cerned. Donna, child, older awakened the opened knock the door. state introduced as a answered the witness Donna, too, eight-year-old girl, Prosecutrix, and asked who testified awoke night question open Appellant en- that on the she the door. answered child not to appellant, the door and admitted Prosecutrix remained whom tered the room. pulled her. she knew had her the cover over Ac- because he visited moth- bed and home; prior to her she er on a occasion in their cording did prosecutrix that at the direction know the never seen bed; Appellant approached to her room him she returned to before. prosecutrix lay and, prosecutrix divan heard she talk- so, ing to pistol, anything removed his coat a but was unable understand from placed they saying; which he table close to later saw hair, coat, her prosecutrix prosecutrix to cause get her comb to appellant; the defendant and leave the with and must sufficient to be back create prosecutrix be a fear of her death or told “she Ann.P.C.; while”; (Donna) harm. Art. that she Vernon’s a little Diggles her then locked the and returned door S.W. 88.
room to bed. distinguished, then, As asked was not The witness Donna force, rape further, testify goes at the much threats whether nor did she because the acts brushed or conduct of the de- prosecutrix got time coat and her fendant (the must appellant she involve death serious hair and left with bodily injury no prosecutrix) excited with was nervous or actual raped. applied. violence having showed evidence of strongly testify The witness’ failure so rape by force, required the force indicates such was not the case. such might reasonably supposed “as sufficient to overcome resistance.” Art. foregoing are 1184, Vernon’s Ann.P.C. conviction must tested. hand, On the other admitted that depends entirely (Mrs. Za- seriousness of home of Zabel see her the threats. bel), home, that she was not at engaged in act intercourse with the threat, Any then, which is less than or her full consent and ac- does not amount to a threat kill or to *6 quiescence. bodily inflict injury serious not and can- not be sufficient to constitute apparent appellant’s guilt It is de- Fear, scare, threats. or mental condition pended unsupported and uncor- which does not amount to a fear of death testimony prosecutrix roborated of the bodily or injury serious is not a threat happened appellant to what while she meaning within the rape law of house. threats. Cognizance must be taken of the fact testimony prosecutrix of the fails Such was burden the state assumed any to reflect that made state- prosecu- to establish when brought it spoke any showing ment or word or which tion. Did the discharge state that burden? “might could construed as a threat that The most favorable construction that reasonably just create a fear of death or given testimony can be to the as showing ”* * * bodily prose- harm a threat is that pistol had a cutrix. person which he removed from his legislature specified has placed clothing how nearby table, through what medium or in a it remained until the act of inter- is, must be made—that complete. whether course was statement, statement, oral some written prosecutrix does All legislature acts appears or done. preceding reflect that the act of inter- in defining have done the term “threats” course threatened to use the specify effect and not is to method pistol any or made statement or employed manner or making such any demonstration or did act showing threats. going that was inflict death or serious The criterion for such bodily injury cases is that her if she did not whatever said done must be such to his demand carnal knowledge of her. agree that myself bring cannot BILLS, Appellant, Jack Austin authorize is sufficient appellant’s conviction. Texas, Appellee. STATE of cannot conclusion reaching that No. 30761. the act after sight
lose of the fact dressed, prosecutrix intercourse the Appeals Court Criminal of Texas. man hair, with the left combed her June threatening raped she said she went serious harm and him, waiting out to automobile while her coat
returned to car, ob- waited
taining voluntarily returned her coat Donna that child
car after told the having while” “would back in a little child nothing
evidencing to indicate to been mistreated (prosecutrix)
that she had accom- or that she manner
panied appellant from the house
her will. testimony strongly suggests that upon for conviction act relied sexual consent, especially prosecutrix’
was with that the statement view of fact tes- shows nowhere directly positively
tified her consent.
act without *7 alleged, want of consent is
When party
here, injured testifies
witness, expressly must be want of consent by the witness and circumstantial not be sufficient to
evidence will establish Note fact.
Here, evidence fails to show that of intercourse was without
the act prosecutrix. The
consent of the state al- indictment,
leged want consent making the burden of
and assumed
proof. have threatened to
This or do her
kill the
harm, thereby causing her intercourse, Ibut cannot find
act of so testified.