Gage v. State

• Decision Date: 18 November 1953
• Docket Number: No. 26598,26598
• Citation: 263 S.W.2d 553,159 Tex.Crim. 336
• Parties: GAGE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 553

263 S.W.2d 553

159 Tex.Crim. 336

GAGE v. STATE.

No. 26598.

Court of Criminal Appeals of Texas.

Nov. 18, 1953.

Al Clyde, Eva Barnes, Fort Worth, Tommy Forbis, Fort Worth, for appellant.

Wesley Dice, State's Atty., of Austin, for the State.

WOODLEY, Judge.

The conviction is for rape; the punishment, death.

The evidence shows that appellant and his companion encountered the prosecuting witness shortly after 9:30 P.M. as she alighted from a bus and was walking on a dark street toward her home, which was some two blocks away.

The prosecuting witness, a young married woman, was forced into the back seat of a car by these two Negro men, despite her struggle and her outcries, and was held face down on the floor of the car by appellant while the other man drove to an old house near a dump ground. Here her eyes were covered with tape and she was dragged to a nearby spot and there ravished, three times by appellant and twice by his companion.

She testified that she closed her eyes tightly when the tape was placed over them and was able to see her assailants because of a slight opening left when she opened her eyes. She identified them later in a police line up.

Following the various assaults, prosecutrix was placed in the car, again being forced to lie on the floor, and was driven for a distance, then led for some half a block from the car and released. She then removed the bandage from her eyes and made her way to a nearby cafe that she found open, arriving there about 1:15 A.M. She reported to the cafe operator and his wife that two colored men had picked her up and had kept her out until then, and that they assaulted her.

The wrist watch worn by the prosecuting witness and her purse and its contents were taken from her during this ordeal and her glasses were missing.

The watch was found in a car owned by appellant, as were her broken glasses. The purse was found buried near the dump ground, appellant having taken the officers to the place where he said he had buried it, and dug it up. A powder puff and lipstick, identified as having been in the purse, were produced by appellant from the pocket of his jacket.

Some $42 in money which was in the purse was not recovered, nor was prosecutrix' wedding ring which was taken from her finger by appellant.

Bills of Exception 1, 2 and 3 complain of the admission of testimony of the prosecutrix and of the cafe operator as to the conversation and report made by the prosecutrix.

The prosecutrix is shown to have reported only that she had been kidnapped, picked up by two colored men or Negroes and taken out and attacked.

We hold that this testimony was admissible, both under the rule of res gestae and as outcry.

Except for darkened houses, the cafe was the first place she found where the presence of people might be expected. There were 'some people' in a car parked in front of the cafe, and the cafe operator and his wife came to the door as she inquired of those in the parked car about a telephone.

These were the first people prosecutrix had seen, and it was proper that the state be permitted to show that she reported the assault at that time. See McIntosh v. State, 85 Tex.Cr.R. 417, 213 S.W. 659.

The testimony shows that the prosecutrix was crying all of the time she was at the cafe, and had the piece of adhesive tape with which she had been blindfolded in her hand.

The testimony as to her report at the cafe constituted a part of the transaction itself and the trial court did not err in admitting it as res gestae. See Hall v. State, cents141 Tex.Cr.R. 607, 150 S.W.2d 404; Skinner v. State, 144 Tex.Cr.R. 648, 165 S.W.2d 198; France v. State, 148 Tex.Cr.R. 341, 187 S.W.2d 80.

Bills 5, 6 and 7 relate to the court's charge.

Appellant requested a charge on rape by threats as follows:

'To constitute a 'threat' there must be an avowed present determination of such a nature as to unsettle the mind of a person on whom it is intended to operate, and to take away from his or her acts that free and voluntary action which constitutes consent. You are further charged that to constitute 'rape by means of threat' there must be such threats as might reasonably create a just fear of death or great bodily harm, in view of the relative conditions of the parties as to health, strength, and all other circumstances of the case.'

The requested charge was refused, the trial court having included in his main charge the following:

'To constitute rape by means of threats the threats within the meaning of the statute must be such as might reasonably create a just fear of death or great bodily harm in view of the relative condition of the parties as to health, strength and all other circumstances of the case, and it must appear that the party charged unlawfully assaulted the alleged injured female and by means of threats as above defined violently ravished and had carnal knowledge of her without her consent and against her will.'

In the light of this instruction on the subject, we find no error in the court's refusal of the requested charge.

Bill No. 6 complains of the refusal of a requested charge containing the following:

'But if you should find and beleive from the evidence that the said defendant did not then and there by force, if any, threats, if any, or by a combination night that duty calls A. C. Howerton he is going to answer the call, and you know, furthermore, that when A. C. was with the consent of the said Ruth Sanders, then you shall acquit the defendant.'

The trial court in his charge required that the jury, in order to convict, find that appellant ravished the prosecuting witness and had carnal knowledge of her without her consent and against her will, and instructed the jury to acquit unless they so found beyond a reasonable doubt.

Appellant did not testify, and we find no evidence which...