Thomas v. State , 108 Tex. Crim. 131 ( 1927 )

Appellant was convicted in the District Court of Travis County on a change of venue from Lee County for the offense of rape upon one Minnie Carlo, and his punishment assessed at ninety-nine years in the penitentiary. This is the third appeal of this case. The first two appeals will be found in 98 Tex.Crim. Rep., 266 S.W. 147; and 102 Tex. Crim. 575,279 S.W. 278.

Appellant complains of the action of the learned trial judge in overruling his motion to quash the indictment. We are not in accord with this contention. The indictment follows the form laid down in Branch's Penal Code, Sec. 1764, p. 990, and has been upheld by numerous decisions of this court.

Appellant brings forward three special charges which were refused by the learned trial judge. These charges are requests for instructed verdict. The facts are amply sufficient to justify the court in refusing to give said charges and in submitting the issues of fact to the jury. The remaining three special charges requested by the appellant were given by the court.

Appellant excepted to the refusal of the court to submit the case on circumstantial evidence. The state introduced in evidence a complete confession, made and signed by appellant, in which he admitted having carnal intercourse with the prosecutrix. This confession showed penetration. Where the state relies for a conviction upon the confession of the appellant, which confession admits the truth of the main facts, no error is committed in refusing to charge on circumstantial evidence.

Appellant also excepted to the failure of the learned trial judge to charge upon the law as to assault with intent to rape and aggravated assault. As we view the facts, these issues were not presented, the appellant having admitted that he accomplished the act of penetration.

Appellant, in his bill of exception No. 3, complains of the admission of the testimony of Mrs. L. G. King, who testified in substance that when she arrived at the home of Minnie Carlo about 2 o'clock in the afternoon of the day the alleged offense was committed, she found Minnie Carlo, the prosecutrix, bleeding from her private parts; that the blood was flowing and that she applied cold water to the prosecutrix's private parts in an effort to stop the flow of blood; that she continued this treatment until Dr. Wood arrived about 4 o'clock the same afternoon; that she examined prosecutrix's clothes and found a great deal of blood and blood stains upon them. This testimony was objected to by appellant for the reason that it was charged, and the state contended, that the alleged rape occurred at 11 o'clock in the morning; that there was no evidence that the injured party, Minnie Carlo, was in the same condition at 11 o'clock; that the evidence showed she was found in at 2 o'clock; that it was not a part of the res gestae for the reason that it was too remote, whether in point of time or from the scene of the alleged offense; that the examination of the person was not made in the presence of the appellant, but in his absence, and was self-serving on the part of the alleged injured party. The court does not certify when the alleged offense was committed, and this is merely the grounds of appellant's objection without any certificate on the part of the court that the grounds were correct. The objection is that the alleged rape occurred at 11 o'clock in the morning, and that the bloody clothing and the bloody parts of prosecutrix were disclosed at 2 o'clock, and this testimony was not admissible as a part of the res gestae. There is no certificate on the part of the trial court that the grounds of objection stated in the bill were correct, and no facts are certified to by the learned trial judge upon which this court can determine whether or not the testimony complained of was res gestae, and in the absence of some showing in the bill negativing the idea that it is res gestae it will be presumed that the ruling of the trial court was correct and that it was res gestae. However, we are of the opinion that if the prosecutrix was bleeding continuously from her private parts subsequent to the alleged rape and on the same day it was permissible to prove that fact as tending strongly to corroborate the confession of the appellant wherein he admitted that he penetrated the private parts of prosecutrix.

What we have said in our disposition of bill of exception No. 3 disposes of bills of exception Nos. 4 and 6.

Appellant complains in his bill of exception No. 5 that Dr. W. E. Wood was permitted to testify that he had known Minnie Carlo practically all her life; that he was the family physician; had had one or two conversations with prosecutrix; had heard her talk some; had observed the expression of her face and the expression of her eyes; that she was paralyzed on her right side from her head to her foot; that she presented a blank look out of her eyes; that from her conversation, the look in her eyes and face, it was his opinion that prosecutrix, Minnie Carlo, was of unsound mind. Objection to this testimony was that the witness was testifying as a layman and not as an expert; that his opportunities to observe the said Minnie Carlo were insufficient to qualify him to express an opinion as to the soundness or unsoundness of her mind, and was calculated to mislead the jury, and was prejudicial to the appellant; that the facts detailed by witness were not sufficient predicate to sustain the questions and answers; that it was not shown that appellant had had the same opportunities of observation as the witness or that he had had any opportunities to hear any conversation of Minnie Carlo, and to observe the expressions of her eyes and face. It will be observed from an examination of this bill that the court failed to certify that the witness was testifying as a layman instead of as an expert. The court did not err in admitting this testimony, the doctor being well qualified to testify as an expert.

Bill of exception No. 7 complains of the argument of the prosecuting attorney, Merton L. Harris. We have read the argument and, in the light of the testimony of the witness, Dr. Joe Wooten, whose evidence the prosecuting attorney was discussing at the time he made the argument complained of, we are of the opinion that the argument was nothing more nor less than a logical and proper deduction from the evidence and was clearly within the record. The court did not err in refusing to instruct the attorney to desist from making said argument.

By bills of exception Nos. 8, 9 and 10, appellant complains because of the testimony of the state's witnesses, Dr. Joe S. Wooten, Dr. W. W. Greer, and Dr. Sam Haigler, who, as experts, testified as to the soundness or unsoundness of the mind of the prosecutrix, and that she had the mind or intelligence of an 8-year-old child. The court certifies in his qualification to each of said bills that the witnesses did not testify as complained of in the bill. However, it is our opinion that the court committed no error in permitting them to testify, they having qualified as experts.

Bills of exception Nos. 11 and 12 complain of the argument of prosecuting attorney. Both of these bills are qualified by the learned trial judge in which qualifications he certifies that the argument complained of in such bills was invited by appellant's counsel. However, it is our opinion that said argument amounted to nothing more nor less than empty declamations, and it is immaterial whether they were invited or not. The argument was not of such a nature as to warrant this court in reversing and remanding this case for another trial.

There being nothing in the record pointing out any error, and the facts being sufficient to support the verdict, the judgment of the trial court 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.

ON MOTION FOR REHEARING.