Donley v. State, 30163

• Citation: 167 Tex.Crim. 427,320 S.W.2d 847
• Decision Date: 14 January 1959
• Docket Number: No. 30163,30163
• Parties: Joe Henry DONLEY, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 847

320 S.W.2d 847

167 Tex.Crim. 427

Joe Henry DONLEY, Appellant, v. STATE of Texas, Appellee.

No. 30163.

Court of Criminal Appeals of Texas.

Jan. 14, 1959.

Jones, Herring & Jones, by Perry L. Jones, M. N. Garcia, Austin, for appellant.

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

WOODLEY, Judge.

The offense is perjury; the punishment, ten years.

A former appeal was dismissed on motion of the State. Donley v. State, Tex.Cr.App., 310 S.W.2d 567.

Judgment and sentence have been entered nunc pro tunc and the appeal is before us upon notice of appeal after sentence.

Henry Ramos, John Lopez, Dicky Moreno, Roy Martinez and appellant Joe Henry Donley went to Zilker Park in Austin late at night in Ramos' car.

They found the prosecutrix, a seventeen year old high school girl, seated under the steering wheel of a car, her date Jimmy seated beside her.

The girl was taken from the car to Ramos' car and placed on the back seat where she was ravished by Ramos, Lopez and Moreno.

The five boys were arrested and indicted for rape.

Ramos and Lopez pleaded guilty and received long prison terms. Moreno was handled as a juvenile.

Appellant made several statements after his arrest.

He was placed on trial, and the State introduced one of his statements as a confession, reading in part:

'On January 28, 1956, I went to a party at the home of Tommie Lopez at 404 East 1 Street. I drank some beer at this party and got pretty drunk. At about 1:30 a. m., January 29, 1956, I went out to Henry Ramos car and sat down. Henry Ramos, John Lopez, Dickie Moreno and Roy Martinez came out to the car and we all rode around. While we were riding around, conversation. started about going to Zilker Park and find a couple parked so we could take the girl out of the car and all have intercourse with her. I don't know who started the conversation, but it kept building up with all of us and finally we drove into the Park and found a car parked near some tables. I don't remember exactly what part of the Park. I don't know who got out of the car first, but all of us went over to the right side of the car. There was a boy sitting on the right side and a girl sitting under the steering wheel. Henry and John stood near the car while Roy and I stood behind them. Dickie came up behind us with a .22 cal. rifle. Henry asked the boy for a cigarette and then asked the boy if he had a gun in the car. Henry took his cigarette lighter and looked in the glove compartment. After that Henry, John and I went around to the left side of the car where the girl was while Roy and Dickie stayed on the right side with the boy. Henry got inside with the girl and started pulling her out. The girl started to holler and Henry told her to shut up. Henry andJohn then pulled the girl out and dragged her over to Henry's car. I opened the door and they put her in the back seat. John pulled the girl's panties off, then got in the front seat and held her while Henry had intercourse with her. I don't remember holding the girl, but was on the front seat until they got started. I then got out of the car until John finished his intercourse and told me it was my time. I went over and got on the girl and tried to have an intercourse with her. She was crying and squirming. Dickie came up and said for me to hurry up. I could not do any good so I got off the girl and Henry got back on her before Dickie could. After Henry finished, Dickie got on the girl and had intercourse. I don't know if Roy ever had intercourse with the girl, because when Roy came over to the car I went back to where Dickie was. * * *'

Appellant testified at his trial for rape and repudiated the confession. The issue of its voluntary character was submitted to the jury with instructions not to consider it for any purpose whatever unless they found that it was freely and voluntarily made.

The court, at the rape trial, charged on circumstantial evidence and the case was submitted upon the State's theory that Henry Ramos ravished and had carnal knowledge of the prosecutrix by force and threats, without her consent, and that appellant was present and knowing Ramos' unlawful intent, aided him by acts or encouraged him by gestures in having carnal knowledge of the prosecutrix.

The jury found appellant not guilty.

It seems apparent that the jury did not consider appellant's confession as true and voluntarily made, else he would have been found guilty of being a principal to the rape.

Some time later appellant was indicted for perjury upon the assignment that as a witness in his own behalf on the trial for rape he wilfully and deliberately testified that he 'did not touch or have anything to do with the said (prosecutrix) and that he did not get into the back seat of a car with the said (prosecutrix) and that he did not open the door of a car.'

The indictment alleged that in truth and in fact appellant 'did touch the said (prosecutrix) and did assault the said (prosecutrix) with intent to ravish and have carnal knowledge of her, the said (prosecutrix) and in truth and in fact the said Joe Henry Donley did open a door of the automobile in which the said (prosecutrix) was assaulted and did then and there get into the back seat of a car with the said (prosecutrix).

The allegation that appellant testified falsely that 'he did not open the door of a car' was stricken from the indictment on motion of appellant.

The same confession introduced at the trial for rape was offered and admitted over objection at the perjury trial; was repudiated, and the question of whether it was voluntarily made was submitted to the jury.

The jury found appellant guilty of perjury and assessed his punishment at ten years in the penitentiary. The appeal is from this conviction.

There are a number of interesting and important questions of law raised on the appeal.

Art. 723, Vernon's Ann.C.C.P. provides that in trials for perjury,...