Harris v. State

• Decision Date: 05 March 1930
• Docket Number: No. 12922.,12922.
• Citation: 28 S.W.2d 813
• Parties: HARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W.2d 813

HARRIS v. STATE.

No. 12922.

Court of Criminal Appeals of Texas.

March 5, 1930.

Rehearing Denied June 4, 1930.

Commissioners' Decision.

Appeal from District Court, Harrison County; Reuben A. Hall, Judge.

Bernard Harris was convicted of rape, and he appeals.

Affirmed.

Scott, Casey & Hall, of Marshall, for appellant.

John E. Taylor, Co. Atty., and Benjamin Woodall, Asst. Co. Atty., both of Marshall, and A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for six years.

The sheriff of Harrison county, upon making a search for appellant and prosecutrix, Mary Alice Rhodes, found them in a secluded spot. He testified that prosecutrix was on the ground on her back, and that appellant was on top of her; that appellant was going through motions suggestive of an act of sexual intercourse; that upon seeing him appellant got up and commenced buttoning up his trousers; that he (the sheriff) said, "Ain't you ashamed of yourself?"; that appellant replied, "I am just in one h-ll of a fix"; that prosecutrix said she "hadn't done anything"; that prosecutrix had straw in her hair and on her clothing; and that there was perspiration on her back. Prosecutrix testified that appellant had sexual intercourse with her with her consent. She, her mother, and father testified that she was fourteen years of age.

Appellant denied that he had intercourse with prosecutrix. He testified that when the sheriff approached he was not on top of prosecutrix. On cross-examination he said: "I don't remember getting up buttoning my trousers. I will not say that I didn't do that; I wasn't on that girl. You have asked me to give a `yes' or `no' answer as to whether I got up from there buttoning my pants, and I will say that I did not. I don't know whether Mr. Sanders saw me buttoning up my trousers or not; I know that I didn't get off the girl doing it. I don't remember buttoning my trousers after I got up. I just don't know whether I buttoned up my trousers or not." Appellant introduced testimony tending to show that prosecutrix was sixteen years of age. He offered no testimony which in any manner showed or tended to show that she was of previous unchaste character.

Appellant offered to prove by prosecutrix that she had told appellant she was sixteen years of age. Upon objection by the state, the testimony was rejected. It should have been admitted as tending to show that prosecutrix was over fifteen and, further, as affecting her credibility. If she had told appellant that she was sixteen and he had believed her, appellant's mistake as to her age would have been no defense. Edens v. State (Tex. Cr. App.) 43 S. W. 89; Manning v. State, 43 Tex. Cr. R. 302, 65 S. W. 920, 96 Am. St. Rep. 873. There was no testimony showing, or tending to show, that prosecutrix had reached the age of eighteen years. Appellant failed to introduce testimony showing that prosecutrix was of previous unchaste character. Although appellant denied the act of intercourse, his guilt was made plain by his own testimony on cross-examination, as well as by the testimony of prosecutrix and the sheriff. In view of these matters we deem the erroneous rejection of the testimony harmless.

If the court improperly permitted the reports of the school census to be introduced in evidence as tending to show that prosecutrix was fourteen years of age (and it is not conceded that error was committed), appellant could not have been harmed. It was undisputed that prosecutrix was under eighteen years of age. There was no evidence that prosecutrix was of previous unchaste character. Appellant fails to show that he could offer evidence touching the question of unchastity.

The special venire having been exhausted, the sheriff summoned talesmen. Without the consent of appellant, or his counsel, the court excused two of the talesmen. Article 606, Code Cr. Proc., provides: "One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled." It is doubtful whether this article can be construed to apply to talesmen. However, we deem it unnecessary to decide the question. We think the record excludes the idea of injury. Dixon v. State, 91 Tex. Cr. R. 217, 238 S. W. 227. This being the case, we would not feel warranted in ordering a reversal.

As the sheriff entered the courtroom with appellant, the court was qualifying the talesmen theretofore summoned by the sheriff. When appellant entered the courtroom, the talesmen were removed, and thereafter, while appellant was present, were called in one at a time for voir dire examination. It is appellant's contention that an important step in his trial was taken in his absence and that the matter presents reversible error. If we understand the record, the court was swearing the entire body of talesmen at the time appellant entered the courtroom. Just exactly what was done before appellant entered is not disclosed. It is shown that each juror was examined on voir dire while appellant was present. As presented, we are of the opinion that the matter fails to manifest reversible error. Cartwright v. State, 97 Tex. Cr. R. 230, 259 S. W. 1085; Powers v. State, 23 Tex. App. 42, 5 S. W. 153.

A careful examination of appellant's contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The venire was exhausted and talesmen were ordered. In the opening of court all talesmen were present except Scheer and Mills. Scheer was called and appeared. After the talesmen were sworn touching their qualifications for jury service, the judge, from the bench, announced that Talesman Barnes should be excused. It was alleged in the motion that the things above mentioned transpired there while the accused was in jail or while he was on the way from jail to the courtroom. Affidavits were attached to the motion. On the presentation of the motion for new trial oral testimony was taken. On behalf of the appellant the testimony was in substance to the effect that after opening court and before the appellant was brought into the courtroom, the clerk, at the direction of the court, called the names of the talesmen. They were sworn to answer questions. Scheer, the first one on the list, failed to appear, but after he was called at the door, he appeared. It is conceded that no questions were propounded to Scheer during the absence of the appellant. On the adjournment of court in the evening, the sheriff was ordered to summon talesmen. Among those summoned were W. T. Mills, a ginner, and Roy Barnes, also a ginner. Upon receiving notice, Mills communicated with the judge, was excused, and did not appear with the other talesmen. Barnes did appear but was excused by the judge. The action of the court in excusing Mills was known to counsel for the appellant.

The talesmen were assembled in a body and sworn by the court to answer questions touching their qualifications. Thereafter they were taken from the courtroom and brought back one at a time and interrogated by the counsel for the state and the appellant respectively. The contention is that the talesmen were sworn in a body before the appellant reached the courtroom. The sheriff who had the appellant in custody gave testimony from which the trial judge would have been justified in concluding that the appellant had entered the courtroom before the court finished swearing the talesmen to answer questions touching their qualifications. This conclusion does not necessarily involve any conflict of evidence. However, the sheriff testified that he reached the courtroom before the court was opened.

In a felony case the presence of the accused at the trial is essential. See article 580, Code Cr. Proc. In a case where the accused is in custody, his absence from the trial would be imputed, not to him, but to his custodian. In the case of Cartwright v. State, 97 Tex. Cr. R. 230, 259 S. W. 1085, many precedents on the subject are cited.

Whether the mere swearing of the talesmen to answer touching their qualifications, if done before the arrival of the accused, would be such a matter as would vitiate the verdict, is open to question. The evidence justifying the conclusion that the accused was present when the talesmen were sworn to answer questions touching their qualifications, the decision of the legal effect of such action in his absence is unnecessary. That the excusing of a talesman in the absence of the accused is not regarded as offending against the constitutional provision guaranteeing the right of trial by jury is made manifest by article 605, Code Cr. Proc. and the judicial construction thereof. The article reads thus:

"Any person summoned as a juror who is exempt by law from jury service, may, if he desires to claim his exemption, make an affidavit stating his exemption, and file it at any time before the convening of said court with the clerk thereof, which shall be sufficient excuse without appearing in person. The affidavit may be sworn to before the officer summoning such juror."

See Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 370; Dixon v. State, 91 Tex. Cr. R. 217, ...