Cox v. State

• Decision Date: 05 October 1921
• Docket Number: (No. 6310.)
• Citation: 234 S.W. 72
• Parties: COX v. STATE.
• Court: Texas Court of Criminal Appeals

Page 72

234 S.W. 72

COX v. STATE.

(No. 6310.)

Court of Criminal Appeals of Texas.

October 5, 1921.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

R. G. Cox was convicted of assault with intent to rape, and appeals. Reversed and remanded.

S. B. Ehrenworth and Garrison, Pollard, Morris & Berry, all of Houston, and C. L. Black, of Austin, for appellant.

E. T. Branch, Dist. Atty., of Houston, and R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

Adjudged guilty of an assault with intent to rape, appellant is condemned to confinement in the penitentiary for 10 years. A companion case is that of Robert Mooring, 234 S. W. 70, affirmed on this date.

The details of the transaction are not materially different from those revealed in Mooring's Case. The two young men and two young girls, after meeting at a public dance, went riding in an automobile, and upon reaching a point several miles from the city of Houston, each of the young men made an assault upon his female companion. Resistance and outcry were made, attracting the attention of a resident, who interfered, taking charge of the girls; appellant and Mooring returning to the city.

The description of the assault given by the prosecutrix, Jonetta Crenshaw, was, in our judgment, sufficient to support the conviction. She said that appellant, who was driving the car, after turning out the lights, put his hands upon her, and prevented her from getting out of the car, choked her, tore her clothes, and, insisting that he was going to accomplish his purpose, put his hands on her person; that she screamed, and continued to scream until Mr. Ulrich came to her aid.

Appellant claimed that he was induced by the conduct of the prosecutrix to believe that his familiarity with her would meet with no objection, and that he had no intent to force her submission. He detailed a state of facts which, if believed, might have reduced his offense to aggravated assault. A motion for change of venue upon the alleged existence of prejudice was made in due time. The means of knowledge of the compurgators was controverted. The appellant introduced evidence; the state did not.

The evidence disclosed that, about a year antecedent to his trial, appellant had been tried for murder and acquitted; that a political campaign followed, in which the manner of his trial and the justice of his acquittal were featured in a spirited race for district attorney. The incumbent of this office was opposed by another, who, in his speeches and by the circulation of printed matter, sought to convince the voting public that the incumbent was unworthy of reelection, citing appellant's trial as evidence. The controversy continued for some six months. The cause of the opposing candidate was espoused by a daily paper published in the city of Houston and circulated throughout the county, having a large circulation and being read, according to the evidence, daily by about 100,000 people. Two or three thousand copies of some issues of this paper, containing references to the appellant's case, were obtained and circulated throughout the county by the friends of the opposing candidate. In various issues of the paper appellant's trial was described. In some of the issues the speeches of the opposing candidate were reproduced, and there were published statements of others to the effect that appellant, in another county, had been guilty of felonies; that he bore a bad reputation. It was shown that a brother of the deceased was a man of influence in Houston, occupying a responsible position in the public service; that he was bitter in his denunciation of the result of the trial of the appellant. It was also shown that labor organizations of the city sympathized with the prosecution, criticised the acquittal, and claimed that the appellant should have been convicted of murder.

Upon the happening of the event upon which this prosecution rests, an account of it was carried in the press, and appellant's identity as the man who had previously been charged with murder was disclosed. Most of the witnesses gave the opinion that there existed against the appellant such prejudice as precluded the probability of obtaining a fair trial. Those most unfavorable to him tended to sustain the truth of his motion. From one of these we quote:

"In a county of this size I think it is possible he can get a fair trial, but I do not think it is probable. I believe there is still a fixed prejudice against him in this county."

The presentation of an application for change of venue, properly verified, makes it incumbent upon the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion. Moore v. State, 46 Tex. Cr. R. 57, 79 S. W. 565; Carr v. State, 19 Tex. App. 656, 53 Am. Rep. 395; Davis v. State, 19 Tex. App. 222; Logan v. State, 39 Tex. Cr. R. 574, 47 S. W. 645; Lemons v. State, 59 Tex. Cr. R. 304, 128 S. W. 416.

The application may be controverted by an affidavit of some credible person attacking the credibility of the compurgators or their means of knowledge. Code Crim. Proc. art. 633. When so controverted, the statute says:

"The issue thus formed shall be tried and determined by the judge, and the application granted, or refused, as the law and the facts shall warrant."

The appellant presented a number of witnesses, who testified to facts within their knowledge, upon which they based an opinion coinciding with the averments in the application. It was his duty, as said in the statute, to try the issue and determine it according as the law and the facts should warrant. The discretion to refuse it was not an arbitrary, but a judicial, one, and, the facts that were before the court having been brought here, the duty rests upon this court to determine whether, in the proper exercise of judicial discretion, the application should have been denied. It is a general and wholesome rule, we think, which declares that the inference of prejudice, requiring a change of venue, is not to be drawn from the fact alone that newspapers published in the vicinity have contained news articles descriptive of the offense or editorials denunciatory of the accused. Downs v. State, 111 Md. 241, 73 Atl. 893, 18 Ann. Cas. 789, and notes; Ruling Case Law, vol. 27, p. 816, § 36. Evidence, however, of such publications and their circulation, is generally received and considered relevant. People v. Suesser, 132 Cal. 631, 64 Pac. 1095; Com. v. Ronemus, 205 Pa. 420, 54 Atl. 1095; Downs v. State, supra. This rule has been applied in this state in Gallaher v. State, 40 Tex. Cr. R. 296, 50 S. W. 388; Faulkner v. State, 43 Tex. Cr. R. 311, 65 S. W. 1093; Cortez v. State, 44 Tex. Cr. R. 169, 69 S. W. 536; Fleming v. State, 62 Tex. Cr. R. 653, 139 S. W. 598.

The publications which were described in evidence and introduced were not confined to giving to the public news, but were pressed with vigor for months by a widely-read publication, in urging that the offense of the appellant was so rank that a public official who had suffered his acquittal should be discredited and retired. It published letters purporting to come from the former abode of the appellant, declaring that in another county he had committed felonies of the most revolting type. It carried in its columns excerpts from the speeches of those who sought to supplant the district attorney because of his failure to convict the appellant of murder, and by its editorials advocated the election of the opposing candidate, basing its advocacy, in part, upon the failure to convict the appellant of murder. Articles denunciatory of the offense charged to appellant were not confined to the paper mentioned, but appeared in another of wide influence and circulation. Reliance is not had upon newspapers alone, however,...