Collier v. State, 28419

• Decision Date: 14 November 1956
• Docket Number: No. 28419,28419
• Citation: 297 S.W.2d 160,164 Tex.Crim. 91
• Parties: Robert L. COLLIER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 160

297 S.W.2d 160

164 Tex.Crim. 91

Robert L. COLLIER, Appellant, v. The STATE of Texas, Appellee.

No. 28419.

Court of Criminal Appeals of Texas.

Nov. 14, 1956.

Rehearing Denied Jan. 9, 1957.

[164 TEXCRIM 91] Fisher, Reavley & Barber, Jasper, Carey Williamson, Silsbee, Thos. H. Dent, Galveston, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The conviction is for rape; the punishment, five years.

Appellant, age 23, commonly called Pete Collier, lived with his cousin John Jones. Jones' wife left for California on Friday afternoon to join her husband. She arranged for the children, including a 14 year old daughter John Evelyn, to stay with their aunt, Lillian Riley, in her home, and left appellant in possession of the Jones residence.

About 2:30 A.M. on December 3, 1955, Helen Horn, who lived next door to the Jones home, heard a noise that 'sounded as if somebody was fighting.' She had seen John Evelyn at the Jones home the day before and knew that her parents were away and that appellant was occupying the home.

Helen Horn went to the Jones home and called John Evelyn. [164 TEXCRIM 92] She heard a female voice that she took to be that of John Evelyn, but did not understand what she was saying.

A man's voice, which she took to be appellant's, answered her second call and said that John Evelyn was not there.

Helen Horn then went to the house of Lillian Riley and asked her to investigate and she did.

Being unable to get in at the front door, Lillian Riley went to the back. Appellant opened the back door and admitted Lillian, and Helen Horn later went in.

Appellant was in his underwear and was drunk, and the house was dark.

The 14 year old girl was lying in bed and was vomiting. She was either asleep or unconscious.

The cover was pulled off the girl and it was found that there was much blood on her and on the bed and cover.

The girl was taken to the McGrath Clinic by Lillian Riley, accompanied by appellant who was there arrested for drunkenness.

Pauline Pace, a nurse at the clinic, testified that the girl was brought to the clinic about 4 A.M.; that her aunt (Lillian Riley) asked her 'who did this to you?' and the girl replied 'Pete Collier did it.'

Lillian Riley testified that the girl was not conscious from the time she found her until after this visit to the clinic and that she did not ask her any question and did not hear any statement from her.

Later in the morning the girl was examined at the clinic by Doctor J. J. McGrath who testified for the State, and whose qualifications to testify as a medical expert were admitted. Dr. McGrath testified that the girl was brought to him and he made the examination for the purpose of determining whether or not she had been raped; that her external female organs were covered with clotted blood; that his examination made after the girl had been cleaned up and the clotted blood removed, disclosed that there were some lacerations in the posterior wall of the entrance[164 TEXCRIM 93] to the vagina, one perhaps an inch long, and two others; that blood was oozing from the lacerations.

Based upon his examination of the girl, Dr. McGrath expressed the opinion that the girl had been raped.

On cross-examination Dr. McGrath admitted that the lacerations in the mucus membrane lining of the girl's vagina could have been caused by the introduction of a coca cola bottle, a broom handle or any cylindrical object big enough to cause a stretching 'but that wasn't the most likely thing to cause it.'

The doctor testified it was not medically true that an intact hymen or maiden-head indicates that there has been no sexual intercourse and explained that the girl's hymen was not of a character to have prohibited intercourse without rupture, but would admit 'anything as big as my two fingers without tearing at that particular time.'

Appellant testified that he arrived at the Jones house where he lived about 2 A.M. and brought with him a gallon of wine, which he made available to the girl. He denied molesting the girl in any way but admitted that he was drunk or 'half drunk and asleep' when the neighbor and the girl's aunt came to investigate.

The girl's testimony was to the effect that she was 'pretty well passed out' after drinking the wine and that appellant did not do anything to her, 'not as I knows of.'

The court submitted the case to the jury as one of circumstantial evidence and we find the evidence sufficient to sustain the verdict.

Appellant does not challenge the sufficiency of the circumstantial evidence to sustain the conviction but in connection with his sole ground for reversal points to the failure of the girl to testify that appellant committed the offense.

Bed sheets taken from the room in which the girl was found were offered in evidence and were taken to the jury room while the jurors were deliberating.

One of the jurors, upon examination of the bed sheets, concluded that yellow stains thereon not previously found, pointed [164 TEXCRIM 94] out or identified, were caused by discharge from a male sexual organ.

The juror had a right to examine the exhibits and to determine for himself what the exhibit was and what if any weight it should be given.

The statement of this juror that the stains were in fact so caused is advanced as ground for new trial because of the receipt of additional testimony by the jury during their deliberations.

The record shows that it was after the other eleven jurors had voted guilty that the Juror Harrison examined the exhibits in the jury room and identified the stains found thereon as being the discharge from the male organ.

The statement of the Juror Harrison was not made until all of the other jurors had decided that appellant was guilty, and the minimum punishment was assessed.

If the statement made at that time can be considered as additional testimony, a point we need not decide, no injury to appellant is shown.

A juror's statement during the jury's deliberation, to require reversal, should be such that reason and common sense can see it was harmful to the accused. Howard v. State, 122 Tex.Cr.R. 371, 55 S.W.2d 1048.

We confess our inability to see how the statement of the juror, of his conclusion formed from examining the exhibits in the case, could have influenced the other jurors who were then and remained convinced of appellant's guilt.

There being no possible harm or prejudice to appellant, the trial court did not err in overruling the motion for new trial.

The judgment is affirmed.

DAVIDSON, Judge (dissenting).

Here is a real 'Believe It or Not' (with due apology to Ripley)!

The two principals in this case--and the only persons, that [164 TEXCRIM 95] is: the prosecutrix and the appellant, who knew whether the appellant was guilty of the offense charged--each testified that the alleged act did not happen and that appellant did not commit the crime of rape upon the prosecutrix.

So, we have here a case where the jury, the trial court, and a majority of this court, all of whom know nothing of the facts, say that the state proved that the prosecutrix was not only raped by someone but by the appellant--all in the face of the testimony of the prosecutrix that rape did not occur.

Does the presumption of innocence and reasonable doubt, Art. 9, P.C., still exist in this state? The holding of my brethren, here, shows that it does not.

Now let us see what the facts are, as revealed by this record.

The prosecutrix, upon whom the state alleged the appellant 'did make an assault' and whom he did 'ravish and have carnal knowledge of,' was a female of the age of fourteen years and nine months when the offense was alleged to have been committed. Lacking only a month of being fifteen years of age at the time she testified, prosecutrix was called as a witness by the state. There is nothing about her testimony to indicate, nor does this record otherwise suggest, that she did not possess normal intellect and intelligence.

The date of the alleged rape was fixed as the night of December 3, 1955. The place where the act was purported to have occurred was a room in the house in which the witness was staying. Appellant resided at the house.

Upon direct examination the witness testified that about 12:30 o'clock at night appellant came home and that she got up and opened the door. I quote from her testimony:

('Q. Did he come in your room?) A. No, sir; he kept to his room.

('Q. Did you ever talk with him?) A. No, sir.

('Q. Did he have any wine, or anything?). A. Yes, sir.

('Q. Did you drink some wine?) A. Yes, sir.

[164 TEXCRIM 96] ('Q. How much did you drink?) A. I drank two glasses and a half.

('Q. Two glasses and a half?) A. Yes, sir.

('Q. Then what did you do?) A. Got in the bed and went to sleep.

('Q. You did what?) A. Got in the bed and went to sleep.

('Q. Then did Robert Collier, Pete Collier, ever come in your room?) A. No, sir.

('Q. You tell the jury he didn't come in there? Is that what your testimony is?) A. Yes, sir.

('Q. Do you recall ever being in the Hospital?) A. Sir?

('Q. Do you recall ever being at the Hospital here in Jasper?) A. No, sir.

('Q. That morning?) A. That morning around eight, I did.

('Q. You went to a Hospital in Jasper, didn't you?) A. Yes, sir.

('Q. Is that all you are going to tell the jury about this matter?) A. That is all I know to tell them.'

Upon cross-examination by appellant the witness testified:

('Q. John Evelyn, do you have any complaint against Robert Collier?) A. No, sir.

('Q. Did he do anything to you?) A. Not as I knows of.

('Q. John Evelyn, what was the relation between you and Robert Collier? You have known him for a long time, haven't you?) A. Yes, sir.

('Q. How did you regard him?) A. Sir.

('Q. How did you regard him? Was he like a brother or--) A. Yes, sir.

[164 TEXCRIM 97] ('Q. What did he think of you? How did he regard you and treat you?) A. He treated me like I was a sister of his.

('Q. Would Robert...