Calhoun v. State, 19648.

• Decision Date: 27 April 1938
• Docket Number: No. 19648.,19648.
• Parties: CALHOUN v. STATE.
• Court: Texas Court of Criminal Appeals

115 S.W.2d 965

CALHOUN v. STATE.

No. 19648.

Court of Criminal Appeals of Texas.

April 27, 1938.

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

Mark Henry Calhoun was convicted of rape, and he appeals.

Affirmed.

L. P. DeLee, of Dallas, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

The offense is rape; penalty assessed at death.

Edeith Mae Jones, a girl thirteen years of age, testified that on the night of October 9, 1937, she attended a picture show at the Fair Theatre in Dallas, Tex., in company with a girl friend. After the show the prosecutrix looked for her brother, who was to escort them home, but failing to find him, they decided to walk home alone. The girl friend accompanied the prosecutrix to Fourth avenue, from which point the prosecutrix had to walk three blocks to her home, which was one block past the Wheatley School. When the prosecutrix reached the school mentioned, the appellant stopped her and asked her where a certain street was. She replied that she did not know. He then grabbed her and said: "Don't scream, or I will kill you." There was a street light nearby which enabled the prosecutrix to see the appellant very plainly. He grabbed the prosecutrix by her throat, caught her hand, and dragged her to the Wheatley School. She was fighting him all the time. During the struggle he cut her on three fingers with a razor. When the appellant was dragging the prosecutrix to the school building he said to her: "Hell, I am going to f_____ you." She asked him why he did not pick on some one of his own race, to which he replied: "I am going to f_____ you." According to the prosecutrix, the appellant told her that she was not the first one that he had gotten hold of but that she was the toughest. After carrying the prosecutrix into the school building, the appellant placed her on a bed in the clinic. She fought him until she fell on the floor, where the assault took place. While they were struggling on the bed, the appellant said that he had a pistol under the pillow, and that if she did not keep quiet he would blow her brains out. She put her hand under the pillow and felt something there, but appellant jerked her hand away and did not permit her to get hold of whatever it was. During the struggle before the assault, the appellant tore off the garments of the prosecutrix from her waist down. After the assault the prosecutrix ran home and reported the matter to her mother.

Mrs. L. G. Jones, mother of the prosecutrix, testified that she took her daughter to a picture show on the night of October 9, 1937. The brother of the prosecutrix was to escort her home, but he did not do so, and she had to come home alone for two or three blocks. When the prosecutrix reached home about twelve o'clock on the night in question, she had on a slip which was draped on her arm to conceal her nakedness. The left hand of the prosecutrix was cut. Her face, body, and legs were just a mass of blood. She had bruises between her legs and on her throat. The prosecutrix told her mother that she had been attacked and raped by a negro in the school. She said that the negro had forced her on the floor and had penetrated her body with his male organ.

Jack Archer, a city detective of Dallas, testified that he searched the neighborhood where the assault occurred, and that he later arrested the appellant in Frederick, Okla., which was about 200 miles from the city of Dallas; that after the arrest, the appellant talked to the officer about the offense.

The written confession of the appellant, duly executed and voluntarily made, was introduced in evidence upon the trial. From it we quote as follows: "I left Dallas to go to Oklahoma to pull cotton last Tuesday a week ago. On the Saturday night before I left I had been up by the Back Yard Cafe and had come back down the street and was sitting on the corner when I saw a girl coming. She was almost to me when I saw her. I got up and grabbed her and started pulling her toward the school building. I already had a knife in my hand made out of a razor blade fastened in a straight thing like they scrape windows with and the handle wrapped with tape. While we were tussling toward the school house the girl grabbed the knife in my hand. She was tussling and screaming so that I do not know whether she was cut or not. I pulled the girl in the Wheatley School and put her on one of the clinic beds. I...