Servina v. State , 109 Tex. Crim. 443 ( 1928 )

The offense is rape, the punishment death.

The state's testimony was, in substance, as follows: On the night of April 20, while John M. Shaw and Frances Mohrmann were driving in an automobile in the city of San Antonio, appellant and one Rodriguez jumped on the running board of the car, placed pistols in their faces and ordered them to continue moving. Upon reaching some brush, appellant and his companion tied Mr. Shaw's hands back of him, placed him and Miss Mohrmann in the rear seat of the car and Rodriguez drove the car seventeen miles into the country, while appellant held a pistol on the parties. Upon reaching some brush, the assailants ordered the parties out of the car, and Rodriguez took Mr. Shaw into a field while appellant remained with Miss Mohrmann. While Rodriguez was in the field with Mr. Shaw, appellant held a pistol on Miss Mohrmann, robbed her of her jewelry, and raped her. Leaving Mr. Shaw in the field, Rodriguez returned and also ravished the young lady. After the injured female had been ravished by Rodriguez, appellant repeated his assault. Completing the act, appellant held a pistol on her while Rodriguez further violated her. Appellant and his companion then placed the injured party in the automobile and carried her to a point within seven and three-tenths miles of San Antonio, where she was tied and gagged and removed from the car. Appellant struck her, knocking her to the ground. Leaving her alone, Miss Mohrmann's assailants drove away in the car. In order to reach San Antonio, Miss Mohrmann was compelled to walk seven and three-tenths miles. In addition to raping her, appellant and his companion took from the injured party five rings, a string of pearls and a wrist watch.

Appellant testified that Rodriguez told him that he would have to aid him in assaulting the car; that as Rodriguez had a gun, "he made me do it;" that Rodriguez tied Mr. Shaw and took him into the field while he, appellant, remained with Miss Mohrmann; that he, appellant, at no time ravished Miss Mohrmann, but that Rodriguez made an attack on her; that after Rodriguez had mistreated her he stated to appellant, "Now you got to use her;" that he demurred and that Rodriguez pointed his gun at him and told him he had to do it or he would kill him; that he did not have sexual intercourse with the injured party, but only made motions as if he were engaged in such act; that he only got a "little close" to her but did not get on top of her; that at the time Rodriguez was about five or six steps from him and had a pistol in his hand; that he had gone with Rodriguez on the expedition in question under the orders of Rodriguez; that he went with him because he threatened to kill him; that he did not carry a pistol.

Appellant made a motion to quash the indictment on the ground that his name was incorrectly set forth, alleging that his name was Esiquiel Serbin. This afforded no ground for quashing the indictment. It was suggested to appellant at the time the motion was presented that he might suggest his correct name. According to the qualification appended to the bill of exception, appellant failed and refused to suggest his correct name. If he had done so the indictment might have been corrected in accordance with the provisions of Art. 496, C. C. P.; Gonzales v. State, 226 S.W. 405.

Bill of exception No. 1 complains of the action of the court in refusing to sustain the challenge for cause to the juror Davis. The juror testified on his voir dire examination that he had formed an opinion from reading newspapers and that it would require evidence to remove such opinion. He further stated that he would lay aside his opinion and render a verdict according to the sworn testimony and the charge of the court. It is not shown by the bill that appellant had exhausted his challenges at the time. Neither is it shown that the juror served on the jury. It is stated in the bill that appellant was thereafter forced to exhaust his challenges before the jury was empaneled with the result that he was required to take jurors whom he would not otherwise have taken. In qualifying the bill the court states that at the suggestion of the District Attorney appellant was offered two additional challenges after he had exhausted his peremptory challenges and that appellant refused to accept the offer. The bill fails to manifest error.

Bill of exception No. 3 is in the same attitude as the foregoing bill.

Appellant timely excepted to the court's charge for its failure to embrace an instruction covering the provisions of Art. 38, P. C. Under the evidence and in the light of the charge given the overruling of said objection was not error.

Appellant lodged an exception to the court's charge on the ground that the jury should have been instructed that they were bound by "the inculpatory and exculpatory statements" contained in his confession. The state did not rely for a conviction upon appellant's confession. It appears that the statements contained in said confession were used by the state, in cross-examining appellant, to rebut his testimony to the effect that he had not raped the injured party. Under such conditions it was not error to omit from the charge the instruction contended for by appellant. Marshall v. State, 286 S.W. 214.

Finding no error, 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.

ON MOTION FOR REHEARING.