Carr v. State
| Decision Date | 14 January 1953 |
| Docket Number | No. 26088,26088 |
| Citation | 158 Tex.Crim. 337,255 S.W.2d 870 |
| Parties | CARR v. STATE. |
| Court | Texas Court of Criminal Appeals |
D. F. Sanders, A. W. Dycus and Bill Sanders, Beaumont, Earl Shelton, Austin, for appellant.
Ramie H. Griffin, Criminal Dist. Atty. and Joe B. Goodwin, Asst. Crim. Dist. Atty., Beaumont, George P. Blackburn, State's Atty., of Austin, for the State.
The offense is assault with intent to rape; the punishment, three years.
The only serious question here presented is the sufficiency of the evidence corroborating the confession.
Appellant's confession relates his movements of the evening in question. Therein, he told that he 'picked up' deceased in a tavern; that they drank beer together; that she agreed to let him take her home; that they stopped at her home, and she ascertained that her husband was not there, and then returned to his automobile; that they drove his friend with whom he had been drinking to his home and then returned to the vicinity of deceased's residence; that he proposed a ride toward Fannett; that she did not voice any objection, but as they drove along she unexpectedly jumped out of the automobile. The confession states further that he stopped his automobile, found that deceased was bleeding around the nose, forehead and ears; that she made no reply to his inquiries; that he placed her in the back of his automobile, drove a mile or two out on the road to Fannett, turned off on a dirt road, again examined deceased, found her limp and moaning, had intercourse with her, then determined that she was injured worse than he had thought, and started back to Beaumont for the purpose of taking her to the hospital, when he was overtaken by the police.
The deceased was shown to have died shortly thereafter as the result of a brain concussion.
Appellant, testifying in his own behalf, admitted all the salient points contained in the confession, but denied the act of intercourse and claimed that he drove down the dirt road a short distance, stopped the automobile, examined the deceased, turned around immediately, and started back to the hospital. The jury resolved the issue of the voluntary nature of the confession against the appellant.
We now examine the remainder of the State's evidence to determine if the confession is sufficiently corroborated.
Recently, in Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559, 562, we said:
The witness Carlton Comeaux testified that on the night in question, as he lay asleep in his home adjacent to the highway leading toward Fannett, he was awakened by a noise that sounded like someone was hit; that he went to the window and observed a man trying to put a seemingly helpless, groaning woman in the back of an automobile. The witness stated that his suspicions were aroused when the man appeared to shield the body of the woman from the lights of two automobiles which passed while he was in the process of placing the woman in the automobile. The witness testified that he hurriedly dressed and followed the automobile for something over a mile on the road to Fannett, where it turned off on a side road leading into the woods; that he returned to his home and called the police; and when they came some ten or fifteen minutes later he rode with them to the entrance to the side road, where they observed the same automobile coming back out to the main road. Comeaux testified that the officers gave chase and finally brought the automobile to a halt; that he remained there until an ambulance came and got the body of the woman found in the back thereof; and when he arrived at the police station he learned that she was dead.
Comeaux's testimony was corroborated by that of his wife and his mother. The latter witness stated that at one juncture during their observation of what was occurring in the street her son had left the window to get his clothes, and at that time she heard the woman 'holler' as the man tried to load her limp form in the automobile; that she saw him strike in the direction of the woman's body; and that thereafter the woman 'hollered' no more.
Dr. Newton, the County Health Officer who performed the autopsy on the body of deceased on the night in question, stated that, in his opinion, the injuries which he observed had caused the deceased to become unconscious and remain in this condition until her death, and that while in such condition an act of intercourse would, in all probability, cause her bladder to empty and thus cause the person having intercourse with her to become wet.
The witness Selman testified that he saw the appellant shortly after his arrest and noticed that his pants were wet from a point just below the belt line for some distance down both legs.
The appellant, in his testimony, sought to explain this condition by stating that the arresting officer had struck him and caused him to urinate on himself.
Officer Savoy testified that following the arrest of the appellant he discovered the body of the deceased in the back of the automobile and that it was exposed from the waist down.
The corroborating testimony, together with the confession, establishes the following:
1. That the deceased asked to be let out at her home; that appellant countered with a suggestion that they go for a ride; that the deceased did not acquiesce but jumped or fell from the moving automobile, thereby sustaining a mortal injury.
2. That the appellant placed her body on the floor in the back of his automobile and struck at her, and she thereafter made no further outcry.
3. That appellant endeavored to shield her body from view.
4. That the appellant, knowing that she had been injured, continued to drive away from town and into the woods, where he remained with her approximately twenty minutes.
5. That expert testimony showed that in an unconscious woman the bladder would normally relax with an act of sexual intercourse, and a witness who saw the appellant immediately after he drove out of the woods with the deceased testified that the appellant's pants were wet at a point higher than would normally result from his having urinated on himself.
6. That, when discovered, the body of the deceased was nude from the waist down.
In conformity with the above rule, we find the evidence sufficient to corroborate the confession and support the conviction.
We now discuss the contentions raised in appellant's brief and argument.
Appellant contends that proof of a consummated rape will not support a conviction for assault with intent to rape.
It will be remembered that the injured party died on the night of the alleged rape and was not present to testify as to penetration and want of consent.
Article 695, C.C.P., provides, in part, as follows:
'The following offenses include different degrees:
* * *
* * *
Judge Graves, in Keeton v. State, 149 Tex.Cr.App. 27, 190 S.W.2d 820, 824, in discussing said Article, said:
'It is true that an indictment for rape includes also a charge for an assault with intent to rape * * *.'
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