Gasway v. State, 25778

• Decision Date: 09 April 1952
• Docket Number: No. 25778,25778
• Parties: GASWAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 942

248 S.W.2d 942

157 Tex.Crim. 647

GASWAY v. STATE.

No. 25778.

Court of Criminal Appeals of Texas.

April 9, 1952.

Rehearing Denied May 21, 1952.

McEachern, Ochsner, Lockhart & Langley and Earnest L. Langley, Amarillo, Harold W. Ochsner, Amarillo, of counsel, for appellant.

H. C. Pipkin, Jr., Dist. Atty., Amarillo, George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is rape of a female under the age of 18 years; the punishment, death.

The injured child, 9 years of age at the time of the commission of the offense, testified that, while away from home on her newspaper route, she was accosted by appellant, who stopped the automobile he was driving and asked her for directions. She stated that appellant first asked her to get in the car; then forced her to do so; drove away with her to a dirt road, where he stopped the car; told her to take off her shorts and underclothes; made her lie down on the seat; and had intercourse with her. She stated that appellant thereafter drove on for a distance, stopped, and had another act of intercourse; and that this procedure was repeated twice more; on one of such occasions appellant forced her to take his private part in her mouth; and that each act of intercourse hurt her. She testified that she finally got away from appellant after the last act near a grain elevator and started to walk back to town along a country road. She stated that appellant was wearing a plaid shirt, with large red, white and blue checks, and blue jeans, and that later she had identified appellant in a police line-up.

There was some discrepancy in the testimony of the child as to the description of the automobile driven by appellant, and some question was raised as to whether she had tentatively identified someone else in another police line-up. We feel that the above is a substantial summary of her testimony which the jury had as a basis for their verdict.

A Mr. Seliger testified that, while approaching the city shortly before 8 o'clock the evening of the day charged in the indictment, near a grain elevator, he passed a little girl walking along the side of the road; that he stopped, and the child was reluctant to get in the car with him until after he had assured her that he would not hurt her. He described the injured child as nervous and nauseated, and recounted how he had brought her into town, where he re-united her with her parents.

The child's mother testified that her daughter had left home on her bicycle to deliver newspapers at 7:00 p. m. on the day charged in the indictment; that she next saw her in response to Mr. Seliger's call, found her crying and bleeding from her private parts; and that she carried her straightway to the hospital for examination.

Dr. Aronson testified that he found the area of the injured child's private part and underclothes to be spotted with blood; that her hymen had been freshly torn; that he discovered in her sexual organ what appeared to be male fluid; and that the child was in a highly emotional state.

Horace Johnson, an acquaintance of appellant, testified that, on the day in question, appellant had borrowed his automobile, had failed to pick him up at quitting time, and that his car had been returned to him later that night. Johnson further testified that, later in the week, appellant indicated to him that he had committed the offense in question and was concerned about disposing of his tell-tale shirt, which had been described in the newspapers and which Johnson had noticed appellant wearing on the day the offense was committed; and appellant, at that time, discussed with him the feasibility of cutting it up and flushing it down the commode. Johnson testified that he reported this conversation to the police.

A deputy sheriff corroborated the injured child's testimony about identifying appellant in the line-up at the jail, and a Mrs. Frazier corroborated the same as to appellant's dress on the day of the offense.

Appellant, testifying in his own behalf, admitted having borrowed Johnson's car on the day of the offense and told of a dissolute day drinking beer and gin from 9:30 in the morning on throughout the day, denied having worn the distinctive shirt described by the other witnesses, and accounted for his whereabouts during the hour between 7:00 and 8:00 p. m., when the offense was committed, in a vague and unsatisfactory manner. He testified that he left Amarillo alone at 5:45 p. m. and drove east to Conway, where he 'hocked' his friend's spare tire for gasoline, and then returned to Amarillo, stopping on the way to drink gin and to sleep. It will be noted that the filling station operator to whom the tire was pledged had testified that the appellant was in Conway at 4:00 o'clock in the afternoon. Illustrative of his vague testimony as to his whereabouts at 7:00 p. m., we find the following:

'Q. You don't remember what you were doing around 7:00 o'clock on the night of June 25th? A. Not exactly, no.'

and, again:

'Q. What were you doing around 7 o'clock--you said you were in Conway sometime after 6 o'clock. A. Yes sir.

'Q. You don't remember where you went after you left Conway? A. I cannot say, no sir, I just don't know.'

and later:

'Q. And you don't remember anything you did then, between the time you left Conway and the time you woke up out there at this place you described, is that correct? A. Yes sir.

'Q. Not a thing? A. Yes sir.

'Q. How do you know you didn't rape this little girl? A. I am pretty positive of it.

'Q. But you don't remember what happened, do you? A. Not exactly, no sir.

'Q. Well, do you or don't you? A. I believe I answered your question--I said no sir.'

Appellant did not deny that, following the commission of the offense, he had told Johnson about his connection therewith. Appellant did testify, however, that, in his opinion, Johnson had turned him in to the law because he wanted to collect the money which had been offered as a reward for the arrest and conviction of the rapist. He further sought to attack Johnson's veracity by testifying that he had 'thieved with him, and stole and gambled and bootlegged, and everything else with the man'.

We find this evidence to be sufficient to support the conviction without reference to the two confessions introduced in evidence.

We now discuss their admissibility.

Appellant's attack upon the conviction is predicated upon his contention that the State's witnesses show the confession to have been taken from him in violation of his right to due process guaranteed to him by the State and Federal Constitutions.

It should be remembered that both confessions were introduced on rebuttal by the State and evidence heard as to their voluntary nature, first, before the court and, then, by the jury, under proper instructions.

Appellant does not claim that he was physically abused in any way or that he was coerced into giving the confession, but merely contends that the chronology of events, as shown below, following his arrest, renders the confessions inadmissible as a matter of law. The undisputed facts are as follows:

1. Appellant was arrested in Amarillo at approximately 2:30 p. m. on Saturday, June 30th, was told that he was suspected of having raped the injured child, was exhibited to her in a line-up with other prisoners, and identified by her. It was at this juncture that the sheriff's testimony reveals that appellant said, 'I want to go and take the lie detector.' Whereupon, appellant's written consent and agreement to accompany peace officers to Austin for the purpose of being tested by the polygraph machine was secured; and the sheriff, his deputy and the appellant left at approximately 6:00 p. m. for Austin, which was the nearest place within the state where a polygraph machine might be found.

We pause to observe that, prior to the arrest of appellant, the injured child had tentatively identified another man as her assailant; another man had been carried to Austin in connection with this case, and had been cleared by the polygraph test. This, we feel, is important in determining the sheriff's intent in making this journey to Austin.

2. As stated, the party left Amarillo at 6:00 p. m. on Saturday.

Appellant contends this was done in order to spirit him out of the county to prevent him from securing a writ of habeas corpus. The sheriff denied that such was his purpose and testified that it was his custom to make long trips at night during the heat of the Texas summer. He further stated that he had told appellant's mother that they were taking appellant to Austin some time before they departed. Appellant contends that the trip was made 24 hours earlier than was necessary, because the sheriff knew that the Department of Public Safety, where the test was to be made, was not open on Sunday. The sheriff testified that the polygraph operator would not take subjects unless they were...