Gephart v. State, 25462

• Decision Date: 27 February 1952
• Docket Number: No. 25462,25462
• Citation: 249 S.W.2d 612,157 Tex.Crim. 414
• Parties: GEPHART v. STATE.
• Court: Texas Court of Criminal Appeals

Page 612

249 S.W.2d 612

157 Tex.Crim. 414

GEPHART v. STATE.

No. 25462.

Court of Criminal Appeals of Texas.

Feb. 27, 1952.

Rehearing Denied May 21, 1952.

Second Motion for Rehearing Denied June 18, 1952.

Hobart Huson, Jr., San Antonio, for appellant.

Bob Long, Dist. Atty., Thomas D. Blackwell, Asst. Dist. Atty., Austin, George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

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

The prosecutrix testified that she was eight years old; that she had met appellant, a school teacher, at the city playground during the summer preceding the day charged in the indictment, that, on the Saturday following Thanksgiving in 1949, appellant had come to her parents' home with an eight or nine-year old girl, who he claimed was his niece, gotten her sister, aged nine, and her brother, aged ten, and her and carried them all to an apartment on Leon Street in the City of Austin.

Prosecutrix testified that appellant instructed them all to disrobe and go into the shower; that appellant disrobed; that he took the eight or nine-year old girl, named Annie, into a bed room; that the door was left open a crack; that she and the other children watched what took place in the bed room; and that appellant had intercourse with Annie, describing the act fully. Prosecutrix related that, after appellant had finished with Annie, he called her sister Helen in and had intercourse with her, at the conclusion of which he bit her on the private part; then sent her out, called prosecutrix in, placed a towel between her and the sheet and repeated the act on her, using something like vaseline on her private part before beginning. Prosecutrix told that, when appellant had finished with the girls, he called her brother in the bed room and 'did it to him in the back', at the conclusion of which he instructed them all to get dressed and warned them not to tell what had taken place, threatening harm if they did and promising presents if they did not. She said that she and her sister Helen had been with appellant to the Leon Street apartment several times before and to other places, and that on each occasion he had had intercourse with both of them.

Prosecutrix' sister Helen testified, and, without repeating the sordid details, it is sufficient to say that she accurately corroborated prosecutrix' testimony. She further testified that appellant had told her that he did not live in the Leon Street apartment, but that he had charge of it for the owner; that she and her brother and sister had, some time later, reported appellant's conduct toward them to a park leader at Ramsey Park.

Prosecutrix' brother also testified, giving the same account of what took place at the Leon Street apartment, adding that at some time during the afternoon appellant had tried to get him to have intercourse with one of the girls.

Dr. White testified that he examined the prosecutrix on April 8, 1950, and found that 'the female organs of this child had been penetrated by some large object, and the hymen was ruptured'.

Mr. Flowers testified that on April 5, 1950, he had been acting as park director at Ramsey Playground; that he knew the three children who had testified; that for several days prior thereto they had been following him around, seemingly waiting for an opportunity to tell him something; and on that day had finally reported the acts of rape by appellant to him. He further told of having seen appellant with the children in the park. He told of reporting the matter to the police.

Both the father and mother of prosecutrix testified that they had twelve children; that the father was a painter and worked during the day, and the mother worked at night; that they had first become acquainted with appellant during the summer of 1949 when he came home from Ramsey Park with some of their children. They related that appellant had been back to the house several times and had carried the children away, under the pretense of taking them to the show or for a ride, one of such times being around Thanksgiving. They stated that the first thing they knew of any acts of impropriety toward their children was when Mr. Flowers, the park director, reported the same to them.

We shall attempt to discuss the twenty-five bills of exception in the order advanced by appellant.

Bill of exception No. 22 complains of the court's failure to grant his Amended Motion for New Trial, alleging that the evidence did not support the verdict, the death penalty, and that the same was contrary to the preponderance of the evidence relating to the question of appellant's sanity.

We have recently held in Ross v. State, 153 Tex.Cr.R. 226, 220 S.W.2d 137; McGee v. State, Tex.Cr.App., 238 S.W.2d 707; and Wenck v. State, Tex.Cr.App., 238 S.W.2d 793, that the question of insanity was a question of fact for the jury; and, if there is evidence to support their verdict, we will not disturb the same.

The same rule applies to the jury's finding on the plea of alibi.

We hold the evidence sufficient to support the verdict.

Bills of exception Nos. 1 and 2 complain of the court's overruling appellant's Plea in Bar and his Second Motion for Continuance.

So that this question may be properly understood, we develop here the chronology of events from the record.

On February 20, 1950, an affidavit alleging appellant to be a person of unsound mind was filed in the County Court of Fayette County.

On February 28, 1950, a jury in said court found appellant to be of unsound mind, and he was committed to the Austin State Hospital.

On April 5, 1950, prosecutrix made complaint to Mr. Flowers that she had been raped during the preceding fall.

On April 29, 1950, the County Court of Travis County entered an order finding appellant to no longer be of unsound mind and restoring his sanity, and on or about that date appellant was released from the Austin State Hospital, and was later arrested in New Jersey.

On May 4, 1950, the grand jury of Travis County returned the indictment herein, charging the offense of rape to have been committed on November 19, 1949.

On September 27, 1950, a motion to set aside the order of the County Court of April 29, 1950, restoring appellant's sanity, was made and an appeal taken from his refusal to set the same aside. The pendency of this appeal was alleged as grounds for continuance on October 3, 1950, when the case was called.

On October 3, 1950, a jury was empaneled in the District Court of Travis County to try the question of appellant's sanity. On October 5, 1950, they returned a verdict finding him sane.

Appellant's contention under bill of exception No. 1 seems to be that he could not legally be put to trial because of the prior adjudication of insanity in Fayette County, as shown above. This contention has been decided adversely to him in Chase v. State, 41 Tex.Cr.R. 560, 55 S.W. 833. See also Apolinar v. State, 92 Tex.Cr.R. 583, 244 S.W. 813.

Bill of exception No. 2 complains of the overruling of his Motion for Continuance on the grounds that there was pending an appeal from the refusal of the County Court to set aside the judgment restoring appellant's sanity. This contention has been held adversely to appellant in Warren v. State, 96 Tex.Cr.R. 627, 259 S.W. 575, 577, wherein we said:

'There was no error in the refusal of the court to delay the trial pending an appeal from the verdict of the jury upon the preliminary inquiry into the sanity of the appellant.'

We note that the trial court herein had the power to adjudicate the question of appellant's sanity, and did so adjudicate the question twice. We do not agree that this trial should have been delayed to await the outcome of an appeal on the same question. Further, it will be noted that this was not a statutory motion and was addressed to the discretion of the trial court.

Bill of exception No. 3 again complains of the court's overruling of appellant's Plea in Bar and is based upon the contention that, since the jury in the County Court of Fayette County found, in answer to Special Issue No. 4, 'How many attacks of insanity has he had, and how long has the present attack existed?' the following, '2 times and 7 years present attack', this became res judicata on the question of appellant's insanity for a period of 7 years prior to February, 1950.

Appellant recognized that Witty v. State, 69 Tex.Cr.R. 125, 153 S.W. 1146, is authority against his contention, but seeks to have us overrule the same. This, we are not inclined to do. In that case, the homicide for which appellant was being tried occurred in July. In September following, appellant was tried in the County Court on a complaint of lunacy, and the jury found him to be of unsound mind and, in answer to Issue No. 4 above, that appellant had been insane for 10 or 12 months. There, the court said that such a finding was not a bar to prosecution, but was presumptive evidence of insanity, and that the jury should have been so instructed. We note that the trial court instructed the jury in accordance with the holding in the Witty case.

Bill of exception No. 9 complains of the admission of the testimony of Drs. Kuehne and Hanretta on the grounds that appellant was under arrest at the time the witnesses examined him and no warning was given him prior to such examination. It will be seen from the bill that it came to the attention of the district attorney on September 27, 1950, that the defense of insanity would probably be interposed; and, pursuant to this information, the district attorney, in preparation for the trial in the instant case, made arrangements to have appellant examined by these two psychiatrists. On September 30, 1950, appellant, while in the custody of the sheriff, was so examined without an order of the court and without having been given the statutory warning. Dr. Kuehne testified that he told appellant that he was there at the request of the district...