Kelly v. State

• Citation: 63 S.W.2d 1024
• Decision Date: 11 October 1933
• Docket Number: No. 16305.,16305.
• Parties: KELLY v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W.2d 1024

KELLY v. STATE.

No. 16305.

Court of Criminal Appeals of Texas.

October 11, 1933.

Rehearing Denied November 8, 1933.

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

Ira Kelly was convicted of rape, and he appeals.

Affirmed.

Russell F. Wolters and J. William Wisehart, both of Houston, for appellant.

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

MORROW, Presiding Judge.

The offense is rape; penalty assessed at death.

The subject of the rape is Evelyn Dudley, alleged to have been a female under the age of fifteen years and not the wife of the appellant.

Appellant entered a plea of guilty, which was duly received by the court. He gave testimony tending to show that he was under the influence of intoxicants at the time the offense was committed. According to his testimony, he drank twelve or fourteen bottles of home-brew and two bottles of "canned heat." Appellant had been a convict in Oklahoma, and had been married three times. The evidence shows with his concurrence that he requested a kinsman, Robert Kelly, Jr., a youth twelve years old, to get some girls, appellant stating that he would give a picnic. Robert Kelly, Jr., had some boys in his company, and two girls were invited by them. A lunch was produced by the appellant and consumed. A game of hide and seek was in progress. Appellant seized and forcibly ravished Evelyn Dudley, who was twelve years old. It would be painful and useless to rehearse the details of the rape. Suffice it to say that, in addition to the appellant's testimony, there was proof evident of his act.

After appellant had testified to the circumstances under which he committed the rape, detailing the amount of liquor he claims to have consumed, the state called several doctors and submitted to them a hypothetical case embracing the testimony of the appellant as to his condition at the time of the commission of the offense and the cause of his condition as claimed by him, namely, the excessive use of intoxicants. There was elicited from the doctors the opinion, based upon a hypothetical case, that they would not regard the appellant as insane at the time of the commission of the offense. Other witnesses who saw the appellant before the commission of the offense testified that he did not appear to be drunk.

Objection is made in a single bill of exception to the reception by the court of evidence bearing upon the sanity of the appellant at the time of the alleged offense. Appellant having given testimony in his own behalf to the effect that at the time of the offense he was under the influence of a quantity of intoxicants which he described, and having testified that when he was arrested for raping the little girl he did not know that he had done so, and that he only realized it after the officers had reminded him of it upon his arrest, it seems to have been imperative that the court instruct the jury upon article 36, P. C. 1925, from which the following is quoted: "Evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in mitigation of the penalty attached to the offense for which he is being tried. When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquor, the judge shall charge the jury in accordance with the provisions of this article."

Such charge was given without protest or exception upon the part of the appellant....