Dies v. State

• Decision Date: 03 March 1909
• Citation: 117 S.W. 979
• Parties: DIES v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W. 979

DIES v. STATE.

Court of Criminal Appeals of Texas.

March 3, 1909.

Rehearing Denied April 14, 1909.

Appeal from District Court, Baylor County; Chas. E. Coombes, Judge.

John Dies was convicted of rape, and he appeals. Affirmed.

Aynesworth, Glasgow & Nugent, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant appeals from a conviction had in the district court of Baylor county on a charge of rape, obtained in said court on the 13th day of August, 1908, in which his punishment was assessed at confinement in the penitentiary for 50 years. The offense is alleged to have been committed in Motley county on the 5th day of July of the same year. The indictment was returned by the district court of Baylor county on August 4, 1908.

1. The first question raised questions the validity of the indictment so returned by the last-named county. This is authorized by the terms of the act of the Legislature passed on the 18th day of June, 1897. It is objected by appellant that this act of the Legislature contravenes article 3, § 56, of the state Constitution, and is also violative of the federal Constitution. All the questions raised touching this matter by appellant were carefully considered in the case of Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780, and were ruled adversely to appellant's contention. It was there held, in substance, that Act June 18, 1897, Sp. Sess. 25th Leg. p. 16, c. 9, providing that prosecutions for rape may be commenced and carried on in the county in which the offense was committed, or in any county of the judicial district in which the offense was committed, or in any county of the judicial district, the judge of which resides nearest to the county seat of the county in which the offense is committed, is constitutional. It is certain that there is no provision of our state Constitution prohibiting the Legislature from authorizing a prosecution for an offense in this state in some county other than the county where the offense was committed, and that article 3, § 45, of our state Constitution, which vests in the courts the power to change the venue in civil and criminal cases, and section 56, which prohibits the Legislature from passing any local or special law authorizing such change of venue, do not prohibit the enactment of a law authorizing the prosecution of an offense in another county than that in which said offense was committed, as is provided in case of rape by the act in question. It is there clearly held that said act is not in derogation of the sixth amendment to the Constitution of the United States, requiring that criminal prosecutions shall be tried in the district wherein the crime shall have been committed, because that provision is a limitation and restriction which applies only to federal procedure, and is not binding with reference to the procedure in state courts. The opinion of Judge Henderson touching this matter is so exhaustive, is so sound and clear, and it is so well supported by authority, that we can add nothing to it. We believe it to be a clear and correct enunciation of the law, and that it should be, as it has been, followed.

2. On the trial numerous objections were made to the competency of certain jurors. The only one of these jurors as to whom a challenge for cause could be sustained, and who was rejected on peremptory challenge, was thereafter on reconsideration held by the court to be subject to challenge for cause, and an additional peremptory challenge by the court granted. So that if there was no error in the proceedings of the court in respect to the juror J. E. Morris, none of these matters can be complained of by appellant. This juror in a general way expressed himself as having a prejudice against the crime of rape. He stated, in substance, that it did not extend to the person charged, but, as we understand, was rather expressive of his abhorrence and detestation of the offense itself. His testimony given on his examination is not wholly consistent, because in part of it, as we understand, he states he would require the appellant to produce evidence to vindicate himself. However, on redirect examination, and as a summary of his final attitude in the matter, he says: "At this time I do not know one thing in the world about the facts of this case, and I would not be influenced by any prejudice in making up my verdict in the case. I have never been a peace officer. In my present frame of mind I am weighing the fact that he is charged with the offense of rape against him. I know nothing whatever about the case, and do not know the defendant in this case. If I go into the jury box I would have to give the state and the defendant alike a fair and impartial trial, and I would require the state to make out her case beyond a reasonable doubt, and if the state failed to make out her case beyond a reasonable doubt I would turn him loose. I have no prejudice against the defendant on account of his being charged with rape. I could set aside my prejudice against the crime of rape and give the defendant a fair trial." This bill is approved, with the statement and explanation that the defendant exhausted his challenges on the jurors Rhea, Renner, Tipton, Welch, and Frazier, being his challenges Nos. 11, 12, 13, 14, and 15, without asking any of said jurors any questions whatever, when the court allowed the said defendant his sixteenth challenge in lieu of the one exhausted on the juror C. H. Mitchell; and the said sixteenth challenge was exhausted upon the juror J. E. Morris. We think there was no error in the action and ruling of the court in respect to this matter. While this juror does, in part of his testimony, express great prejudice against the crime of rape, and his examination in some portions of it is consistent with the idea that his prejudice is so great that it might extend to the defendant himself, and implies a prejudgment of his cause, after all, as we believe, it is but an expression of his sense of outrage at the too frequent cases of rape occurring over the country. This is such a feeling as would, we believe, apply to many men, if, indeed, not most good men, and to find and impanel a jury composed only of persons having no prejudice or feeling of horror in respect to a crime of this sort would only result in impaneling a jury that ought not to be allowed to try any case. We believe, and therefore hold, that there was no such error in respect to this matter as would or could prejudice appellant.

3. Again, complaint is made at the action of the court in admitting in evidence the testimony of the witness Mrs. Thomas, an aunt of the prosecutrix, Gladys Thomas, to the effect, in substance, that on the day in question, and a short time after the rape was accomplished, prosecutrix made complaint to her aunt and told her that appellant had raped her. That it was competent for her to make an outcry without giving the details of the transaction, of course, is evident. The complaint, as we understand, extends only to the fact that she identified appellant as being the person who had accomplished her outrage. This, while admitted at the time offered, was subsequently withdrawn by the court from the consideration of the jury, and in view of the fact of the certainty of her outrage, and that there is no suggestion that it was or could have been done by any one else, in view of the fact that the matter of resistance was not an issue in the case, she being less than 15 years of age, and the withdrawal of the incompetent testimony by the court and his instruction to the jury not to consider it, we do not think that the matter is of such gravity as could have injured appellant.

4. Complaint is also made of the improper argument of counsel for prosecution. The matter arose in this way, as appears by the bill of exceptions: Hon. L. W. Dalton, in his closing argument, made the following statement to the jury: "Judge Glasgow in his argument before you stated that the prosecutrix, Gladys Thomas, asked Mrs. Carrie Thomas what effect turpentine had upon any one, and that Mrs. Thomas then questioned her, and that prosecutrix then for the first time complained that she had been ravished. We objected to this argument of defendant's counsel and appealed to the stenographer, and such was found not to have been the testimony of Mrs. Thomas. You will remember, gentlemen, that I asked Mrs. Thomas if Gladys made any complaint about having been raped, and that she testified that Gladys complained to her that defendant, John Dies, had raped her, and that the court, upon the defendant's objection, instructed you not to consider that part of Mrs. Thomas' testimony that related to any complaint about the defendant; that you could only consider that part of Mrs. Thomas' testimony that Gladys had made complaint to her that some one had wronged her, but as to who she stated it was could not be considered by you." Appellant excepted to these remarks of counsel, and stated to ...