Lemons v. State

• Decision Date: 09 March 1910
• Citation: 128 S.W. 416
• Parties: LEMONS v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W. 416

LEMONS v. STATE.

Court of Criminal Appeals of Texas.

March 9, 1910.

On Motion for Rehearing, May 11, 1910.

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Appeal from District Court, Swisher County; L. S. Kinder, Judge.

John Lemons was convicted of assault with intent to rape, and he appeals. Affirmed.

Martin & Zimmerman and Reeder, Graham & Williams, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

The appellant has appealed in this case from a conviction of assault with intent to rape with a punishment of five years in the penitentiary. The indictment was returned in the district court of Swisher county, charging the appellant in the first count with burglary by breaking and entering the house occupied by Mrs. Anna Murray, with intent by force, threats, and fraud to have carnal knowledge of the said Mrs. Anna Murray. The second count charges that appellant made an assault upon Mrs. Anna Murray with intent to commit the crime of rape. He was brought to trial upon this bill of indictment at the August term, 1909, of said court, resulting in his conviction aforesaid; the case being submitted to the jury upon the second count only.

1. When the case was called for trial, appellant made a motion in the nature of an objection to the cause being tried at that term of court for various reasons set out in said motion—that is, that the minutes fail to show when the indictment was received by the court and ordered filed; that the copy of the indictment that was served upon him was not a true and correct copy; that the appellant's counsel had been misled by the state's counsel and had been induced to believe that the indictment was going to be dismissed and a new indictment found; that a new indictment was returned into court, but was subsequently dismissed, and appellant objected to going to trial at that time because he had been misled as above stated. This motion or objection is not sworn to, nor is any bill of exceptions in the record covering same. Appellant also made a motion to continue the case for the want of the testimony of certain witnesses. This point was not preserved by bill of exceptions, and none of the matters mentioned in said objection to going to trial or motion for continuance in the absence of bill of exceptions can be considered by this court.

2. Appellant made a motion to quash the bill of indictment, or the second count in the bill of indictment, the first count having been dismissed by the state on the ground that it failed to allege that appellant was a male. It is sufficient answer to this motion to quash to say that the indictment is in the usual form, and that the court correctly refused to quash the same.

3. Appellant, before the trial of the case, made a motion for change of venue on both grounds of the statute—that is, that prejudice existed so great in the county that he could not obtain a fair trial, and because there existed a dangerous combination of influential persons that would prevent him from obtaining a fair trial. This motion was supported by the affidavits of two persons, and, when filed, the state filed a controverting affidavit made by the district attorney, in which affidavit it was stated that the supporting compurgators, Killingsworth and Socten, had not sufficient acquaintance and knowledge of the people throughout Swisher county with reference to the matters contained in said statement and affidavit, and had not sufficient information with reference to the matters in said motion contained as to justify their statement that prejudice existed in Swisher county against appellant, that they were wholly unacquainted with the feelings and condition of the sentiment in Swisher county in relation to the case, and that they had not been over the county sufficiently to form a correct idea with reference thereto and are mistaken as to the extent of prejudice. When this affidavit was filed on the part of the state, appellant demurred to the same on the ground that it was insufficient in that it did not specially controvert the second ground of the motion, to wit, the combination. The court overruled the demurrer, and directed that the parties proceed to offer testimony. We are inclined to hold that the affidavit made by the district attorney was sufficiently specific to make an issue in the case. The statute provides that the state may controvert the defendant's showing in an affidavit attacking either the credibility of the witnesses or his means of knowledge. The affidavit of the district attorney says that these witnesses were not sufficiently acquainted with the people of Swisher county and did not have sufficient information and knowledge with reference to the matters in said motion contained, and were not sufficiently informed as to justify them in making the statement that prejudice existed in the county. In the case of Davis v. State, 19 Tex. App. 201, and in the case of Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395, this court held that when a motion was made by the defendant for a change of venue supported by the affidavit of two credible persons, as provided under article 578 of the Code of Criminal Procedure of 1895, if no controverting affidavit is made attacking the credibility of the witnesses or means of knowledge, the defendant would be entitled to a change of venue as a matter of right. But, where the affidavit is made, it raises an issue of fact to be tried by the court, and we think that under the provisions of article 583, Code Cr. Proc. 1895, that the motion for change of venue may be attacked by an affidavit which questions the credibility of the persons making the affidavit or their means of knowledge, and, when an issue is thus formed, the court shall try the same. We think that this article of the statute should be given a broad meaning, and that the words "means of knowledge" should not be given a restricted or limited meaning, and when the state files an affidavit saying that the compurgators had not the information and were unacquainted with the condition of things in the county, and their means of knowledge was limited as to the matters set up in the application for change of venue, it was sufficiently stated to raise the issue to be tried by the court. But, if it should be held that the affidavit was not sufficient to make an issue to be tried, yet, if the court proceeds with the trial of the issue in the court below and the defendant offers proof to show that the prejudice existed, or the proof established that prejudice did not exist, how is appellant in a condition to complain before this court? In the Davis Case, supra, the court, speaking through Judge Hurt, says: "Now, while the court may have erred in overruling the defendant's exceptions to the answer controverting the supporting affidavit, the defendant and the state, without any objections upon the part of defendant, went fully into this matter by examining the compurgators and a number of other witnesses, not only in regard to the existence of prejudice, but as to the means of knowledge of the supporting affiants. Appellant might have objected to the introduction of any evidence until a legal issue was formed; but this was not done, and it does not appear that any incompetent evidence was received upon the trial of the issue, though not formed according to article 583. We are not able to perceive in what manner the rights of appellant have been affected in this matter—at least, not to such extent as would require a reversal of the judgment." In the Carr Case, supra, the court says: "Notwithstanding there was no issue formed between the parties upon one of the grounds for change of venue relied on by defendant in his application, still he proposed to prove affirmatively: (1) That there was such combination against him; and (2) that, in fact, there was such prejudice in the county against him that he could not obtain a fair and impartial trial." Therefore, if appellant went into the trial of the case and the court heard the testimony pro and con and determined the point of fact that there was no such prejudice nor combination, how or in what manner could the appellant be injured? We therefore hold that the affidavit made by the district attorney was sufficient to raise the issue; and, second, that, the appellant having offered testimony in support of the issue, the state would have the right to combat same, and for this reason we overrule the bill of exceptions questioning the manner of proceeding in the court below. This bill of exceptions further contains the testimony offered by the state and appellant on the issue, and this testimony we think was sufficient to justify the court in refusing to grant the change of venue.

4. On the trial of the case, after the court had delivered his main charge to the jury, appellant requested several special charges. The first of these charges was a request that the jury be instructed that the degree of force as applied to rape must be such as to overcome all resistance that could be put forth by the woman, "and, though a man may have had carnal knowledge of a woman by force and without her consent, if when the time and place of the commission of said act and the relative strength of the parties is considered and taken into consideration the woman could have avoided said carnal knowledge by any resistance on her part, not used by her at the time, or by anything she could or should under the circumstances then surrounding her have done, and that would have avoided the carnal knowledge with such man, then such carnal knowledge would not be rape." We cannot give our consent that this charge is correct either abstractly or as applied to the facts of this case. To hold that it would not be rape if the woman could have avoided said carnal knowledge by resistance not used by her at the time, or by anything she could or should have done under the circumstances then surrounding her, would be demanding of the woman the...