Hill v. State

• Decision Date: 22 October 1941
• Docket Number: No. 21689.,21689.
• Parties: HILL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 369

157 S.W.2d 369

HILL v. STATE.

No. 21689.

Court of Criminal Appeals of Texas.

October 22, 1941.

Rehearing Denied January 7, 1942.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Henry Allen Hill was convicted of rape, and he appeals.

Affirmed.

Doss Hardin, of Dallas, for appellant.

Chas. A. Pippen, Asst. Dist. Atty., of Dallas, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The conviction is for the offense of rape. The punishment assessed is death.

The record shows that on Saturday night, November 30, 1940, the prosecutrix and John S. Sanders were out riding in an automobile; that when they reached an underpass between Parkland Hospital and the football stadium in the City of Dallas they had to slow down the speed of their car to about fifteen miles per hour; that appellant jumped on the running board of their car, opened the door, hit Mr. Sanders on the head, jerked the switch key out of the car and told Sanders that if he did not let him have the girl he would blow his brains out. Mr. Sanders jumped from the car and ran around to the side thereof, where appellant was, and a fight ensued. Appellant hit Sanders on the head with a rock, knocked him down and then caught the prosecutrix and began to pull off her clothes. Sanders again came to the woman's rescue, but appellant again knocked him down with the rock, and while Sanders was lying on the ground unconscious, appellant jerked her clothes off until she was almost nude. He then knocked her down and by force had sexual intercourse with her. During all this time she was screaming for help and struggling with her assailant to prevent him from accomplishing his purpose, but without avail. About the time that appellant had accomplished his purpose, Mr. and Mrs. Kearns, and Mr. and Mrs. Gardner came along in an automobile. Seeing and hearing what was going on, they stopped and got out of their car to render whatever assistance they could. Appellant hesitated for a moment and then left, but during the struggle Sanders had torn a pocket from appellant's coat which contained his discharge from the penitentiary. Appellant was arrested the next day just before noon and carried to the city hall where he was identified by both Sanders and the prosecutrix. He made a voluntary confession admitting the assault but denying that he succeeded in raping prosecutrix.

Appellant contends that the court, in the trial of the case, committed seven errors, each of which requires a reversal of the judgment. We will consider and dispose of them in the order in which they are presented.

His first contention is that the court erred in declining to sustain his motion to quash the indictment based on the ground of alleged race discrimination in the selection of the grand jury. It is averred in his motion that he was of African descent and belonged to the negro race; that the jury commissioners, in the selection of grand jurors, deliberately and designedly discriminated against the members of his race in that they intentionally declined to select any negroes as members of the grand jury which returned the indictment against him. When his motion was presented, the State contested the same and the court heard evidence on the subject. Mr. James O. Cherry, one of the jury commissioners who selected the grand jury, testified in substance as follows: "In selecting the Grand Jury we selected what we thought were the best qualified men to serve. We discussed the best men available. I knew part of the Grand Jurors and the other Commissioners knew part of them and each one selected the men they knew personally to make up the Grand Jury. * * * We did not select a negro. I did not know of one that was qualified. I made no investigation or inquiry as to whether there was a negro in Dallas County qualified to serve. * * * The Judge gave us the instructions in regards to selecting the Grand Jury, but did not tell us to select a negro. * * * We discussed the selection of a negro on the Grand Jury, but I didn't know a negro, personally, who was qualified. * * * We did not arbitrarily discriminate against the negro race, and no one expressed any prejudice against the negro race in selecting the Grand Jury."

Mr. O. W. Cox, another jury commissioner, testified in substance the same as did Mr. Cherry. He said they carried out the instructions of the court to get the best men available without respect to race, color or creed.

Mr. H. W. Whisenant testified that he assisted in making up the census rolls for Dallas County for the year 1940; that the approximate population for the county was 398,049.

Charles T. Brackins, a negro, testified that he was engaged in the insurance and bonding business; that he owned property in Dallas County and paid his poll tax; that he had never been called upon to serve on a grand jury nor did he know of any negro who had ever been called. C. R. Graggs, another negro, testified in substance as did Brackins.

Charles A. Pippen testified that he had lived in Dallas County for 27 or 28 years; that he is now serving as Assistant District Attorney; that he had served as Judge of the Criminal District Court of Dallas County for a period of sixteen years, but never had a negro on the grand jury; that he always read the statutes to the jury commissioners; that there are certain qualifications a man must possess to become a grand juror; that is, he must be a man of good moral character, not under indictment, not previously convicted of a felony, must be a qualified voter, etc.

Appellant testified in substance that he was arrested for the offense of rape on December 1, 1940; that he requested the officers to let him go before the grand jury and talk to the grand jury commissioners about putting a negro on the grand jury; that he could read and write and said that the averments in his motion were true. He testified that he did not know whether or not he was in jail when the grand jury was empaneled; that he did not know when the grand jury was sworn in; that he asked the officers to take him before the grand jury when they were bringing him from the city hall; that he made no request to be taken before the grand jury after he was transferred from the city hall to the county jail.

The Assessor and Collector of Taxes for Dallas County testified that 58,000 white people and 8,000 negroes paid poll taxes in said county.

Robert Gregory, who was employed by the Dallas Express (a colored newspaper), testified that he had been in Dallas four months; during which time he made a survey of the colored population of Dallas County; that it was his opinion that there were 55,000 negroes, including men, women and children. However, he did not know how many men could read and write or how many were qualified to serve as grand jurors.

Mrs. Pearl Smith, District Clerk of Dallas County, testified that she had held that position since January 1, 1939; that she had never issued any summons for negroes to serve on the grand jury in the county so far as she knew.

It was admitted by the attorneys for the State and the defendant that the grand jury which indicted appellant was empaneled on the first Monday in October, 1940, for a period of three months and that the offense was committed something like sixty days after the grand jury had been in session. Consequently the grand jury was in session at the time this offense was committed by the appellant.

Article 339, C.C.P., provides as follows:

"No person shall be selected or serve as a grand juror who does not possess the following qualifications:

"1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes cannot be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.

"2. He must be a freeholder within the State, or a householder within the county.

"3. He must be of sound mind and good moral character.

"4. He must be able to read and write.

"5. He must not have been convicted of any felony.

"6. He must not be under indictment or other legal accusation for theft or of any felony."

These mandatory provisions of the statute, which are not deemed to be unfair, must be observed by the jury commission in the selection of the prospective grand jurors, and unless a person possesses the required qualifications he is not a competent and qualified grand juror.

In filing his motion to quash the indictment, appellant assumed the burden of sustaining his allegations by proof. He attempted to do so by showing certain facts from which, as he claims, such a conclusion could be reasonably drawn. He showed that 58,000 white persons and 8,000 negroes paid poll taxes in Dallas County, but the record is silent as to how many of them were male and how many were female persons; nor is it shown how many of these male persons could read and write; nor how many of them were freeholders in the state or householders in the county. Appellant called two of the jury commissioners as witnesses, each of whom denied any intention of excluding negroes from grand-jury service. Both testified that each jury commissioner selected men from his community who were considered best suited and qualified to render the service imposed upon grand jurors by law. Moreover, it was agreed that the grand jury had been empaneled while appellant was still serving a sentence in the penitentiary and approximately sixty days before he committed the alleged offense. Hence, there could not have been any formed design or concerted action on the part of the jury commissioners to discriminate against him.

The trial court patiently heard all the testimony relative to the question presented and decided it adversely to the...