Grace v. State

• Decision Date: 22 June 1921
• Docket Number: (No. 6305.)
• Citation: 234 S.W. 541
• Parties: GRACE v. STATE.
• Court: Texas Court of Criminal Appeals

234 S.W. 541

GRACE v. STATE.

(No. 6305.)

Court of Criminal Appeals of Texas.

June 22, 1921.

Rehearing Denied November 23, 1921.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

George McKinley Grace was convicted of rape, and he appeals. Affirmed.

W. C. Linden, of San Antonio, for appellant.

D. A. McAskill, Dist. Atty., and W. S. Anthony, Asst. Dist. Atty., both of San Antonio, C. M. Cureton, Atty. Gen., and E. F. Smith, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the Thirty-seventh district court of Bexar county of rape, and his punishment fixed at death.

This is the second appeal. See 225 S. W. 751. Appellant was given the death sentence upon his former trial.

A change of venue was asked in this case. By proper affidavit the state attacked the means of knowledge of the compurgators whose signatures were attached to appellant's motion for such change. Upon the issue thus joined the trial court heard a great deal of evidence, of such length as to render a reproduction of any considerable portion thereof impossible in this opinion. More than 40 witnesses testified, and their testimony covers about 150 pages of the record. The range of said testimony was very wide. A large number of newspaper accounts of the various stages of the progress of the case from its inception down to the present time were incorporated in the record. We have examined these, as well as the testimony of the various witnesses on the stand. Many of the newspaper articles appear to be a fair statement of the facts as they transpired, and are not inflammatory or apparently written for the purpose of creating any prejudice against the accused. It is not to be presumed that a fair-minded citizenship will necessarily become so prejudiced against one accused of crime, by simply reading fair accounts of the matter in the newspaper, as to result in the creation and existence of that prejudice which is contemplated by our statute as requiring a removal of the cause from the county in which same is pending. It was shown by the record that Bexar county has a population subject to jury service of approximately 25,000 persons, and while some of the witnesses testified to having heard expressions unfavorable to appellant, our examination leads us to conclude that the number of persons heard to make such prejudiced statements was not very considerable. We find in the record the testimony of a number of witnesses introduced by appellant himself who testified that the expressions they had heard were about evenly divided between favorable and unfavorable, and almost none of the witnesses testified that they believed from their knowledge of the citizenship of the county that appellant could not get a fair and impartial trial. In fact most of the witnesses testified to the contrary. Appellant is a negro, and the record contains the testimony of a number of negroes who testified that they believed he could get a fair and impartial trial in Bexar county. It was shown that the population of Bexar county was exceedingly cosmopolitan in character, and that in addition to a large number of negroes there was a great class of citizenship which entertained no prejudice against colored people. The trial court heard said evidence, and, in accordance with the duty imposed upon him by statute, came to a decision regarding same; and, unless we are led to believe that his action was against what would appear to be just and right in the premises, it would be our duty to uphold his action. We are unable to conclude that there was such evidence before the court below as should have induced him to conclude differently from the judgment entered by him in overruling said motion.

The special venire summoned was exhausted without obtaining a jury, and thereupon appellant filed a supplemental motion for a change of venue, which was based upon what occurred in passing upon said first venire. We have examined this motion and the evidence supporting it, consisting of a stenographic statement of the results as to each venireman. Said first venire consisted of 200 men, only 160 of whom were summoned by the sheriff. Thirty of these seem to have been excused by the parties, probably before the trial actually began. In examining the venire 23 of them had conscientious scruples and were excused; eleven were excused on account of sickness; 9 failed to answer when their names were called; 11 were excused because of inability to understand the English language; some could not read and write; 13 were excused because the wrong name appeared in the venire list; 22 had opinions about the case; and 7 were excused by the court because of their bias or prejudice. Of said veniremen the state challenged 4 and appellant 7, peremptorily. Four jurors were obtained.

Instead of this result leading us to conclude that it showed the existence of that character of prejudice against appellant for which a change of venue should be granted, we are constrained to the opposite belief. After overruling said supplemental motion, a second venire of 200 men were ordered, 74 of whom were not reached in the examination. As far as we are able to learn from the record before us the jury was completed without any man being forced upon the accused who was objectionable to him. There is no bill of exceptions in the record showing that when the jury was in process of completion, any person was forced upon appellant over his objection. A review of the entire history of the two venires present and summoned in the course of the selection of a jury in this case on the instant trial shows that out of 250 men who actually were examined before the court a jury was secured apparently not objectionable to appellant. We do not believe the record shows such condition as would justify any conclusion of injury to appellant from being put to trial before a jury in Bexar county. We do not think any reason appears why the court should not have overruled either the original or supplemental motion for change of venue.

The state introduced against appellant his written confession. The bill of exceptions reserved by appellant to this action covers more than 30 typewritten pages. Said objections appear to be that said confession was not freely and voluntarily made by appellant after being warned. We cannot reproduce the evidence, but it appeared to be almost entirely in favor of the proposition that said confession was freely and voluntarily made. Appellant himself testified at length and to the contrary to this view. In such case of contest the proper practice in this state seems to be to submit to the jury the voluntary character of such confession instructing them that if they entertain a reasonable doubt as to whether said confession was freely and voluntarily made, they will not consider same. This was done in the instant case, and three special charges, prepared by appellant's counsel, were given to the jury covering various phases of said question.

Appellant's third bill of exceptions relates to the fact that when his mother was testifying in his behalf she was asked if the first officer who talked to her on the morning of appellant's arrest, same being the morning after the night of the alleged rape, did not ask her, "Where is your son that goes to work at the Katy Railroad at 8 o'clock, and leaves at 4?" and if she did not reply, "He is not here; he is in Beaumont with his father." It is...