Moore v. State , 152 Tex. Crim. 312 ( 1948 )

The offense is rape. The punishment assessed is death.

The record reflects that on the night of February 22d 1947, Betty Louise Glover and Tracy Rader had borrowed his mother's car to go and purchase some cigarettes. When they were in the act of turning off Jensen Drive into La Badie Street, a negro jumped on the running board of their car, pointed a nickle-plated pistol at them and commanded Rader to drive down a dirt road about a half-block away and stop. Rader complied and the negro then told them to get out of the car and walk over to some bushes all of the time keeping the pistol pointed at them. When they arrived at the designated spot, he told them to sit down and hold their hands behind them which they did. He then tied Rader's hands with baling wire, his feet with a belt, and then tied him hog-fashion with a rope, and wrapped a rag over his face. He then ravished the young lady. After he had accomplished his purpose, he drove away in their car. An hour or two later while appellant was driving along West Dallas Street he noticed Aaron Jones and Leroy Allen standing on the sidewalk engaged in a conversation. Appellant called Aaron Jones off and had a conversation with him, then Aaron Jones called to Leroy Allen and said we are going to have a little fun. The three entered the car, Jones got under the wheel, at which time Aaron handed Leroy a .25 automatic pistol and asked him to put it up for him. When they were driving along appellant told them that he had taken the car from a man and had tied the man up and instructed him not to report the matter until the next day. He then suggested that they go and make some money at the same time exhibiting a large nickle-plated pistol. He drew the pistol out of a brown jacket. Leroy Allen became frightened and devised a scheme to get away from them. He asked them to drive by his house in order that he may change clothes which they did. Leroy then went to the back of his home and across the street to his brother's home where he spent the night. After waiting for Leroy for quite a while, they, appellant and Jones, drove up the street to a Jap cafe, drank some coffee, and then drove to Tom Anderson's place where they spent about one hour, parked the car on Saulnier Street and left it there until Monday evening when Jones went there, got into the car, and drove it on the streets of the city when he was arrested. At the time Jones was arrested, he made a statement to the officers which led to the arrest of Leroy Allen and later to the arrest of appellant. Leroy Allen also made a statement to the officers which coincided with that of Jones. Appellant was arrested on Tuesday morning following the Saturday night of the assault at which time a pistol of the same kind and character as that with which the young couple had been terrorized was found in his possession. This pistol, according to the testimony of Johnny Daughtry, was stolen from his place of business in Richmond, Texas, about a week or ten days prior to the arrest of appellant. Booker T. McKinney testified that he burglarized a cafe of Mr. Daughtry, stole the pistol in question, and sold it to appellant on the 20th day of February. After appellant's arrest, he made a voluntary confession which was introduced in evidence. The young couple positively identified him as the party who committed the offense. On his trial he repudiated the confession, denied that it was voluntary, and asserted that he was beaten and mistreated until he made it in order to avoid being further punished. His defense was an alibi.

There were no objections urged to the court's charge. Appellant brings forward five bills of exception relating to the court's action in admitting, over appellant's timely objection, certain evidence which will hereinafter be discussed.

Bill of Exception No. 1 shows that appellant took the witness stand and testified in his own behalf. He repudiated his confession. He claimed the confession was obtained from him by the officers who punished and mistreated him until he was willing to make any confession they desired. He also denied that he told Aaron Jones and Leroy Allen that he had tied a man and took his car. On cross examination he was asked by the district attorney if he was not then charged by complaint in the Justice Court in Austin County, Texas, with rape and with robbery. He objected to the question and the same being overruled, he answered that he did not know; that it was the first time he had heard of it. He was then asked if the woman didn't identify him as her assailant. He then requested the court to strike out the questions and answers and withdraw the same from the jury. This the court declined to do and he excepted. He contends that the offenses with which he was charged in Austin County were extraneous offenses and not in any way related to or connected with the offense for which he was on trial, etc.

This evidence was admissible as affecting his credibility as a witness. It is a well established rule in this state that a defendant or any other witness may be impeached by the adverse party by proving by the witness on cross examination that he had been indicted or convicted or that he was then under indictment for a felony or for a misdemeanor imputing moral turpitude. See Branch's Ann. P. C., page 101, Sec. 167, where many authorities are cited sustaining the rule. See also Tex. Jur., Vol. 45, Sec. 240.

Bill of Exception No. 2 discloses the fact that the state proved by Tracy Rader, the companion of the young lady on the night when she was ravished, "that he knew a young girl by the name of Betty Louise Glover; that he had been keeping company with her." The state also proved by Betty Louise Glover "that her name was Betty Louise Glover; that she knew Tracy Rader; that she had been keeping company with him," when in truth and in fact, the witnesses Tracy Rader and Betty Louise Glover were married on the 4th day of April, 1947, some time after the indictment was returned but before the trial began. Appellant's contention seems to be that by reason of her marriage, her name at the time of trial was Mrs. Betty Louise Rader which constituted a variance. We do not so regard it. It was definitely shown that she was the same party. See Rutherford v. State, 13 Tex. App. 92[13 Tex. Crim. 92]; and Cain v. State,153 S.W. 147; where the subject is fully discussed.

It is shown by Bill of Exception No. 3 that after the jury had retired to deliberate they sent the following written question to the judge: "If the defendant is found guilty of rape as charged and is sentenced to a life term in prison, can the defendant ever be released from prison under any circumstance?" To which the court replied: "You are instructed that the main charge of the court as given you herein is your guide in passing upon the case, and the court is not allowed by law to answer you in any other way." The court's reply was not any additional instruction. He merely referred them to his charge. Why the jurors asked the question or what they had in mind is not disclosed by the record. They had a right to discuss the evidence, and to determine his guilt and the punishment to be assessed without any comment from any other source and this, so far as the record shows, they did. We see no error reflected by the bill. See Prather v. State, 131 Tex.Crim. R.; and Heald v. State, 92 S.W.2d 1042.

The matters complained of in Bills of Exception Nos. 4 and 5 relate to the introduction in evidence of the complaint pending in the Justice Court of Austin County, Texas, wherein he was charged with rape and also with robbery, but the Grand Jury of Austin County had not, at the time of this trial, been empaneled and had not had an opportunity to either return bills of indictment or no bill him. We have, in a way, discussed the subject of this complaint in our discussion of Bill of Exception No. 1 and we see no need to again enter upon a discussion thereof. A mere reference to the authorities cited is deemed sufficient. We overrule these bills.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Opinion approved by the Court.

ON APPELLANT'S MOTION FOR REHEARING.