Johnson v. State

• Decision Date: 15 February 1939
• Docket Number: No. 20032.,20032.
• Citation: 124 S.W.2d 1001
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1001

124 S.W.2d 1001

JOHNSON v. STATE.

No. 20032.

Court of Criminal Appeals of Texas.

February 15, 1939.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

J. D. Johnson was convicted for rape by force, and he appeals.

Reversed, and prosecution dismissed.

E. H. Griffin, of Graham, and Jno. Abney, of Hillsboro, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for rape by force, punishment assessed at death.

Prosecutrix, the victim of the assault, was a white woman fifty-seven years old, a widow who lived alone on a small farm which she cultivated herself with some help from a married son who lived on another farm nearby. Appellant was a negro youth seventeen and a half years old. He lived on an adjoining farm to that occupied by prosecutrix. He was well-known to her, having formerly done some work on her farm for a negro tenant or employe of prosecutrix. According to her testimony appellant assaulted and had carnal knowledge of her by force and against her will just before dark on the afternoon of April 9, 1938. The scene of the assault was near the barnyard or lot on the premises of prosecutrix, she having gone to the barn to feed her stock, the attack occurring as she was returning to the house.

One of the serious complaints of appellant arises from the failure of the court to charge upon the subject of alibi. Appellant denied having committed the assault and the only affirmative defense—if it may be so designated—was that he was at another place when the assault was committed upon prosecutrix. In view of the evidence upon that issue, the time of day at which the assault occurred becomes material. Prosecutrix testified that she first saw appellant near her place "a while before sunset"; that she took no lantern with her to the barn because "it was not dark enough" to make it necessary; that the assault took place between "sunset and dark; I don't know what time except it was between sunset and dark." She said it was still light enough for her to know and recognize appellant as her assailant. Appellant testified that he had been to town on the day of the offense and had gotten some groceries for his mother and took them to her house and remained there until "pretty close to sunset" at which time he left going to Mr. Ben Enders, which was about a mile from his mother's home; that the sun was going down when he reached the Enders home; that he helped Mr. Enders take some side-boards off a trailer and that he and Mr. Enders made an unsuccessful effort to milk a wild cow; that he was at the Enders place for about half an hour or an hour; that when he left Enders to return home he went the usual route which took him by and near the premises and barn of prosecutrix and that it was "pretty dark" when he passed there. He went home and went to bed where he was found by the officers later in the night. Robert Enders testified that appellant came to the house of witness' father at six o'clock and remained there until seven-thirty during which time appellant had not been out of witness' sight. He fixed the time positively by radio programs to which he was listening. Immediately after appellant left witness went to the lot and milked the cow which his father and appellant had tried to milk earlier. The witness testified that it was dark when he did such milking.

We have set out the foregoing testimony in order that it may appear that the issue was directly raised whether appellant was at Enders' place at the time it was claimed the assault was committed.

Appellant pertinently called attention to the omission of an instruction on alibi by the following written exception to the court's charge: "Said charge wholly fails to instruct the jury upon this defendant's affirmative defense raised by the evidence in this case to the effect that he was at another and different place at the time that the assault, if any, was made upon the prosecuting witness at her barn. Defendant is entitled to have this defense affirmatively presented to the jury and to have their attention directly called to it."

Appellant did not rest upon such exception but went further and presented a special requested charge supplying the omission to which the exception was addressed.

It is too well established to require discussion that appellant is entitled to fair submission of any affirmative defense raised by the evidence. As it relates to an alibi Mr. Branch in his Ann.Tex.P.C., Sec. 55, states the principle very tersely as follows: "If the testimony raises the issue of alibi, it is error to fail to charge on alibi where the charge of the court is excepted to at the time for such omission."

"If there is testimony raising the issue, it is error to refuse to give a requested charge on alibi."

Many cases are cited supporting the text. In addition we note the following. Harris v. State, 119 Tex.Cr.R. 71, 44 S.W.2d 708; Burk v. State, 117 Tex.Cr.R. 144, 33 S.W. 2d 462; Colston v. State, 106 Tex.Cr.R. 423, 292 S.W. 881; Freeman v. State, 91 Tex.Cr.R. 410, 239 S.W. 969; James v. State, 86 Tex.Cr.R. 107, 215 S.W. 459; Hill v. State, 103 Tex.Cr.R. 580, 281 S.W. 1071.

Appellant sought to have the indictment quashed on the ground that there was discrimination against him—he being of the negro race—in that he says citizens of his race and color were excluded from the grand jury which returned the indictment, and that said discrimination was in violation of the 14th Amendment to the Constitution of the United States which guarantees him equal protection of the law, and was a denial to him of due process of law. It is not necessary to set out the motion in full. It was sufficient to raise the issue of discrimination. In bill of exception number six, which brings forward complaint of the overruling of said motion to quash the indictment, there is set out the said motion after which appears the following recitals.

"The State did not file any counter affidavits nor controverting plea nor denial of any kind, nor offer any witness to contradict the statements in the motion.

"The court thereupon proceeded to hear said motion and the defendant called a number of witnesses and tendered their testimony and certain documentary evidence in support of said motion.

"Thereupon it was agreed between the defendant and the attorneys representing the State, with the consent and approval of the court that the following were the true facts in support of said motion and should be included in the record in lieu of the testimony and...