Dodd v. State

• Decision Date: 13 February 1918
• Docket Number: (No. 4820.)
• Citation: 201 S.W. 1014
• Parties: DODD v. STATE.
• Court: Texas Court of Criminal Appeals

201 S.W. 1014

DODD v. STATE.

(No. 4820.)

Court of Criminal Appeals of Texas.

February 13, 1918.

On Motion for Rehearing, March 20, 1918.

Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.

Leonard Dodd was convicted of rape, and he appeals. Affirmed. On motion for rehearing. Motion overruled.

H. G. Wills and J. H. Synnott, both of Dallas, for appellant. Mike T. Lively, Dist. Atty., of Dallas, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of rape, and the death penalty assessed. The subject of the rape was Miss Florence Orcutt. The indictment contained but one count, and therein charged appellant with rape by force.

On the night of June 25, 1917, Miss Florence Orcutt was riding in a jitney driven by a man by the name of Savage. According to their testimony, they were on their way to the residence of a man living some miles out of the city of Dallas on a business mission; Miss Orcutt having employed Savage to make the trip. They claimed by mistake to have taken the wrong road, getting into a narrow lane, and while looking for a place to turn their car around heard an automobile overtaking them. They stopped on one side to allow the approaching car to pass. The car in which appellant and Walter Stevenson were riding was stopped, and some conversation took place with reference to a road to a certain village. Appellant and Stevenson passed on after this conversation, and Miss Orcutt and Savage turned and drove back into the pike road. Soon after reaching it they were overtaken and stopped by Stevenson and appellant. Savage was struck by one of them with a hammer, and while he was helpless from the blow or blows Miss Orcutt was taken out of his car and put into that of appellant and Stevenson, appellant driving the car, and Stevenson sitting on the back seat with Miss Orcutt. They drove toward the city of Dallas, passed through a part of the lighted portion, and again drove into a dark portion of the country, where they forced and dragged Miss Orcutt out of the automobile and assaulted her. That Stevenson raped her while appellant held her is not questioned; that appellant tried to rape her while Stevenson held her is definitely established; that appellant succeeded in penetration is controverted, though there is evidence to sustain the affirmative finding upon the issue. Miss Orcutt was told by them that they would keep her until morning and kill her to prevent her from disclosing the facts. While they were still with her they were discovered by a man in an automobile. Stevenson ran, and appellant remained, his person exposed, threatening the man who discovered them with a hammer, trying to drive him away. The young lady screamed, however, and jumped onto the automobile and was rescued. She exhibited evidence of abuse in the way of the disarray of her clothing and numerous wounds about her face and head which she testified were given by the appellant and his companion during her struggles resisting violence.

A motion for change of venue on the ground of prejudice was made. Evidence was heard for and in opposition to it. The bill of exception containing this evidence was not filed until November 9th, while court adjourned September 29th. Objection to its consideration is made by the state based on article 634, C. C. P., which is as follows:

"The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made."

This statute has frequently been held to deny this court the right to review the action of the trial judge in refusing a change of venue where evidence was heard in the absence of a bill of exception preserving the evidence and filed during the term of court at which the order was made. Bowden v. State, 12 Tex. App. 246; Bink v. State, 50 Tex. Cr. R. 445, 98 S. W. 863; and numerous cases collated in Branch's Ann. P. C. p. 181, § 301.

The record does not disclose a state of fact showing the officers of the court are responsible for the delay so as to require a reversal because of the failure of appellant to secure his bill, as was done in Miller v. State, 52 Tex. Cr. R. 72, 105 S. W. 502. The transcribed notes of the stenographer appear to have been available some days before the end of the term. A reading of the evidence adduced at the hearing for a change of venue does not indicate arbitrary action or abuse of discretion by the trial judge in overruling the motion in the absence of which his decision will not be overturned. Dupree v. State, 2 Tex. App. 613; Bohannon v. State, 14 Tex. App. 302; Branch's Ann. P. C. § 299, and cases cited.

Appellant set up insanity as a defense. An expert on this subject was asked a hypothetical question, to which objection was made "for the reason that the same was not a complete nor a true statement of the testimony and states facts as proven, which were contradicted by the testimony and by the confession in evidence." The trial judge in qualifying the bill says that the hypothetical question was a fair, full, and complete statement of matters in evidence. Such is our view of it after reading the bill. Nothing is pointed out in the bill as going beyond the evidence. Mr. Branch, in his Ann. P. C. p. 18, § 31, deduces from the decisions of this court the following rule:

"Each side has a right to an opinion from the expert witness upon any hypothesis reasonably consistent with the evidence, and if meagerly presented on one side, it may be fully presented on the other, being within the control of the court, whose duty it is to see that the examination is fairly and reasonably conducted. In putting hypothetical questions, counsel may assume the facts in accordance with his theory of things, and it is not essential that he state all the facts to the witness as they have been proved."

This is supported by the decisions which he cites, including Burt v. State, 38 Tex. Cr. R. 444, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330, and Morrisson v. State, 40 Tex. Cr. R. 494, 51 S. W. 358.

Dr. Turner, an expert on insanity, who appears to have been present at the trial as a witness, was called by the state in rebuttal, and objected to testifying because he had been employed by appellant to make an examination of him with reference to his sanity, and that he desired to be exempt from the necessity of giving his opinion on account of the confidential relationship existing between him, a physician, and the appellant, his patient. The court, without objection from appellant, excused the witness, and at the end of the trial the appellant requested the court to instruct the jury to disregard the incident just related. Appellant presents no authority sustaining the contention that there was error thus disclosed, and we have found none. Dr. Turner was a witness, and the state's counsel appears to have been within his rights to call him to testify, and so far as we are advised, to require him to testify, so far as the inhibition of privileged communications touches the subject. The general rule is that communications between physician and patient in the absence of statute are not privileged. Wharton's Crim. Law, p. 1059, § 516. The courts recognize that there are many reasons for regarding the communications between physician and patient as privileged where the patient seeks the physician for medical aid, and in many states statutes have been enacted on the subject. It has been held, however, that where the consultation is not for medical aid, these reasons do not obtain. Bower v. Bower, 142 Ind. 194, 41 N. E. 523. Whatever the rule, there is no statute in this state exempting such communications.

Where insanity is an issue, it is competent for the state to call witnesses to prove the conversations and conduct of an accused, not admitting guilt, while in jail as a basis for an opinion as to the sanity or insanity. Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; and other cases cited in Branch's Ann. P. C. p. 17.

The court in submitting the case to the jury authorized conviction on the theory presented by the evidence that appellant accomplished penetration, and also on the theory that he aided Stevenson, and might be held as a principal in the rape by Stevenson. Appellant, by objecting to the charge, complained of submitting the law of principals, and in a special charge insisted that conviction should be authorized alone on the theory that appellant succeeded in penetration and accomplished the rape by his own act. The evidence was undisputed that Stevenson committed the rape while appellant held the victim, and, unless insane, he was guilty of the offense under the law of principals (Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858; P. C. arts. 74 and 75); and in order to convict him under the law of principals it was not necessary to allege in the indictment the acts which made him a principal.

"A principal offender may be charged directly with the commission of the offense although it may not actually have been committed by him." Branch's Ann. P. C. p. 344, § 676, and cases cited, including Cruit v. State, 41 Tex. 477; Williams v. State, 42 Tex. 392; Bell v. State, 1 Tex. App. 598; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858.

It follows that under the indictment it was competent to prove that appellant was guilty of rape as a principal without allegation showing that it was the intent of the state to support the prosecution upon evidence that by his aiding another in the act he became guilty of it under the law of principals.

When it was developed by the evidence that the facts were such as would support two prosecutions for rape against appellant, one for his...