Jones v. State
| Decision Date | 02 May 1951 |
| Docket Number | No. 25239,25239 |
| Parties | JONES v. STATE. |
| Court | Texas Court of Criminal Appeals |
Larry Scarborough, George Overshiner, Abilene, for appellant.
Wiley L. Caffey, Dist. Atty., Abilene, George P. Blackburn, State's Atty., of Austin, for the State.
DAVIDSON, Commissioner.
Rape by force is the offense; the punishment, confinement in the penitentiary for life.
About dusk on October 3, 1950, a tire upon the automobile prosecutrix was driving, unaccompanied, went flat near Abilene, where she lived. Appellant came along in his automobile and offered his assistance, which prosecutrix accepted. After a time and with some degree of difficulty, the tire was removed and appellant, in his car, carried it to a service station to get it repaired. In about fifteen minutes appellant returned with the repaired tire and placed it upon the automobile.
According to the testimony of prosecutrix, appellant grabbed her and by force and by assault placed or made her get into his automobile. He then drove some distance onto a lonely country road, where he stopped the car and there, by force and threats, raped her. After the completion of the act he returned prosecutrix to her automobile, at the time threatening her life if she told anybody. Prosecutrix drove her car home and communicated to her husband what had happened. The police and a doctor were called.
Appellant was arrested the following morning and prosecutrix positively identified him as the rapist. In this identification, prosecutrix was corroborated by other facts and circumstances which need not be here detailed.
Appellant denied his guilt and relied upon an alibi as an affirmative defense, as to which there was some corroboration.
It was the province of the jury to solve the fact issue thus presented, and their verdict, finding support in the testimony, will not be disturbed.
Appellant being unable to employ counsel to represent him, the trial court appointed three young attorneys of the Abilene, Texas bar, as his counsel.
It appears that the indictment was returned against appellant on October 10, 1950. Three days thereafter, on October 13, 1950, he was arraigned, at which time the three attorneys were appointed. At that time appellant was endeavoring to secure counsel of his own selection and it was not until October 16, 1950, that he advised his appointed attorney that he would rely upon their services.
The case was called and proceeded to trial a week thereafter.
When the case was called for trail, appellant presented an application for a continuance which, in effect, sought a delay of the trial until his attorneys could have sufficient and reasonable time to prepare for the trial and interview witnesses, especially in the light of the public feeling and the publicity given the case.
The application was not based upon any statutory ground. It was addressed entirely to the discretionary powers of the trial court. It was the province of that court to accept or reject the motion, and his action in rejecting same is reviewable by this court only to determine whether his action is so manifestly wrong as to evidence an abuse of discretion.
In the light of the record as a whole, we are constrained to agree that reversible error, in the respect mentioned, is not reflected and that the trial court did not abuse his discretion with reference thereto.
A motion to change the venue of the case was based chiefly upon the notoriety given by newspaper articles in detailing what purported to be the facts of the case and other claimed prejudicial statements.
One of the factors ordinarily entering into a determination as to when the venue of a case should be changed is the viewpoint of the prospective jurors as well as the jurors selected therefrom to try the case. This record does not reflect the number of prospective jurors who had opinions regarding the case, the number of challenges exercised by the respective parties, or any other facts touching the selection of the jury that tried the case.
The bill of exception presenting this question is, among other things, qualified by the trial court as follows: 'The Court excused every juror that stated or left the impression that he had an opinion in the case and as he recalls no juror testified that he had any bias or prejudice in the case and at no time during the selection of the jury was an exception or objection made because the Court failed to excuse any single juror.'
The appellant, having accepted the above qualification, is bound thereby.
If it be conceded that a prejudice existed against appellant, yet there is an absence of any testimony that such prejudice found its way into the jury box.
It has been held that newspaper publicity, alone, does not establish prejudice or require the...
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