Graham v. State

• Decision Date: 04 February 1914
• Parties: GRAHAM v. STATE.
• Court: Texas Court of Criminal Appeals

163 S.W. 726

GRAHAM v. STATE.

Court of Criminal Appeals of Texas.

February 4, 1914.

Appeal from District Court, Cooke County; C. F. Spencer, Judge.

George Graham was convicted of rape upon a girl under 15 years of age, and he appeals. Affirmed.

Potter, Culp & Culp, of Gainesville, for appellant. Louis Rogers, Co. Atty., and Owen Davis, Asst. Co. Atty., both of Gainesville, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of the rape of a girl under 15 years of age, and his punishment assessed at 10 years in the penitentiary.

The evidence fully sustains the conviction. Briefly stated, it shows that the young girl alleged to have been raped was just past 12 years of age; that she was traveling on the train from Ochiltree county to New Boston, in Bowie county; that her route took her through Gainesville in Cooke county, where she had to change cars and lie over from some time one day till early the next morning. Upon arriving at Gainesville and getting off the train, she ascertained how long she would have to remain there and went to a hotel and procured a room. There appellant saw her, and he began his attentions to her, making her presents, taking her to supper, and finally went to bed and remained all night with her, having sexual intercourse with her that night and also the next day. He also paid her hotel bill. The first act occurred on the night of April 18, 1913, and the other next morning. The officers in some way got information of what had occurred and arrested him on April 19th. His trial and conviction occurred on June 25, 1913. His motion for a new trial was heard, and evidence introduced thereon, and overruled on July 11, 1913, There are several objections to the court's charge and the refusal of the court to give some specially requested charges.

The only way error is assigned upon the specially requested charges is by a bill merely stating that the following charge, copying it, was requested; the court refused to give it, to which appellant excepted. And in the motion for new trial in effect that the court erred in not giving said special charge, numbering it. It is too well settled to need a citation of the authorities that such bill and motion for new trial are too general to authorize or require this court to consider them. Byrd v. State, 151 S. W. 1071, and cases there cited.

However, we have examined each of appellant's special charges, which were refused, and those at all proper to be given were fully and substantially embraced in the court's charge. The other is to the effect that, if the jury believed from the evidence that the defendant was ever insane at any time prior to the commission of the offense, the state must prove his sanity at the particular time the offense was committed. This is not the law and should not have been given.

It is well established that the burden of proof to show insanity, when insanity is the defense, is upon the appellant and not upon the state. If the party had previously been legally convicted of insanity, and a judgment showing this was introduced in evidence, the rule would be different. In this case there is no intimation that appellant had ever been even tried for insanity, much less convicted.

Appellant complains that, while the alleged raped girl was on the stand, the county attorney was permitted to ask her, in one bill, if she learned when her train would leave for New Boston, and she replied, "Yes, sir." He asked her when it left; she answered, "Six o'clock." And he asked when, and she said, "In the morning." And he asked if the defendant was with her, and she said, "No, sir." The bill does not show the connection in which these questions were asked and answered. It is certainly of such an immaterial matter that could not result in the reversal of the case or in any injury to appellant, but it was admissible anyway.

The other two bills were to this same witness' testimony. In one the county attorney asked her if appellant did anything to her there. She answered, "Yes, sir." He asked what did he do, "did he have intercourse with you?" She answered, "Yes, sir." He asked how long she had been in bed before this. She said quite a while. He asked if he put his arm around her, and she said, "Yes, sir." In the other bill it is shown the county attorney asked her what else he did to her. She answered, "Along in the latter part of the night we had intercourse." He asked, "How did he do that?" "Did he get on top of you?" She said, "Yes, sir." He asked, "Did he force your legs apart?" She said, "Yes, sir." He asked, "Did his private parts enter yours?" She answered, "Yes, sir." The bills, and neither of them, show in what connection these questions were answered. They were somewhat suggestive and leading, but the court explained the bills to the effect that the girl seemed slow to understand the questions otherwise put. Neither of these bills show any error. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215, and a great many cases decided, both before and since, needless to cite.

Appellant's seventh bill complains of the court in permitting his expert witness, Dr. Johnson, to answer certain questions about what lunatics frequently plan and lay schemes and devices to carry out, and about there being institutions where surgical operations are performed on parties who have brain pressure to relieve them, and institutions in which criminals are treated and their brain pressure removed to relieve them and their criminal propensities. The court, in qualifying the bill, stated, "No evidence that defendant had ever been thus treated for any such trouble," and correctly held that such evidence was inadmissible in this case.

There appears in the record what is claimed appellant's bill No. 8. This was not approved by the court, and, of course, on that account cannot be considered by this court. Even if it had been, it presents no error.

The only other bill is to the argument of one of the special prosecuting attorneys wherein he complains that this attorney said, "Oh, you slick one, why didn't you go and bring some good people from that neighborhood up there that would say that she was 15 years old, or that she was not born on the 2d day of January, 1901?" The connection in which this language is claimed to have been used is not given. The court, in approving the bill, did so with the explanation that "the defendant knew from the time of his arrest that the state would show by prosecutrix that she was under 15, and under all the evidence, argument, etc., this remark was not improper, as defendant's counsel in argument had lamented the fact that the state had not brought neighbors to testify to her age." As qualified, clearly the bill shows no error. We think it was a legitimate argument, and especially so as being in reply to appellant's counsel's argument.

There are several complaints of the court's charge. None of them present reversible error. We will state and discuss such of them as we deem necessary.

The punishment for rape is death or confinement in the penitentiary for life or for any term of years not less than five, to be fixed in the discretion of the jury. P. C. art. 1069. In the first part of the court's charge defining rape and the punishment therefor, as to the punishment, he told the jury that it was by confinement in the penitentiary for any term of years not less than five, or by death, thereby omitting to tell the jury that it could also be by confinement in the penitentiary for life. When he submitted the question to the jury for a finding, he told them that if they found him guilty they would assess his punishment at confinement in the penitentiary for any term of years they might see fit, not less than five. We cannot understand how such errors are made by the trial judges. In neither of these places in his charge, nor elsewhere, did he tell the jury the correct punishment, and of course in that respect the charge was wrong.

In our opinion, in both instances, however, this was in appellant's favor and not against him, but especially is this the case when he submits the question to the jury for a finding, for, under that, they could neither have assessed his punishment at death nor at confinement in the penitentiary for life. In no event has appellant been injured by this, but, on the contrary, if anything, was benefited by it. Under such circumstances, article 743, C. C. P., as it existed when this case was tried, prohibits this court from reversing, for it says that judgment "shall not be reversed unless the error was calculated to injure the rights of the defendant." Besides, the verdict of the jury was for 10 years, clearly within the period...