Linton v. State

• Decision Date: 26 April 1961
• Docket Number: No. 33150,33150
• Citation: 346 S.W.2d 320,171 Tex.Crim. 213
• Parties: Jimmie Leon LINTON, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 320

346 S.W.2d 320

171 Tex.Crim. 213

Jimmie Leon LINTON, Appellant, v. STATE of Texas, Appellee.

No. 33150.

Court of Criminal Appeals of Texas.

April 26, 1961.

Frank Sparks, Eastland, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is rape; the punishment, 9 years.

The State's proof shows that the prosecutrix lived at a certain address in the City of Abilene with her husband and nine months old son. The husband worked at night at a local service station. The prosecutrix testified that, on the night in question after she had retired around 11:30 p. m., she was awakened by a man who was lying on top of her; that when he attempted to have intercourse with her she screamed, got out of bed, and the man then dragged her into an adjoining room where her baby was sleeping; that the man threatened to cut both her and the baby and threatened their lives; that, after she quieted the baby, they then returned to her room where the man tore her gown off and had carnal knowledge of her against her will and without her consent. She stated that at such time she was scared and that, after the man left the house, she saw a 1955 blue and white Chevrolet automobile with a mirror on the fender and 'loud tail pipes' drive out of the driveway. She further testified that the man appeared to have been drinking, was wearing white khaki clothing, and had bushy hair but that she could not identify appellant as the man. She further testified that the man left a cigarette lighter and a pencil in the bed. After the man left, the prosecutrix took her baby and went to a neighbor's house across the street. When they arrived she was crying, could not talk coherently, and, after her husband had been called and came to the house, she related to him what had happened to her. It was shown that appellant owned and operated a 1955 Chevrolet blue and white automobile with twin mirrors on the fenders and dual exhaust pipes. On the night in question, appellant drove into the service station where the prosecutrix' husband was working on two occasions. On the first occasion, appellant came to the station around 8 p. m. and purchased a Coca Cola and, on the last occasion, around 1:05 a. m. when he purchased a package of cigarettes.

In the investigation which ensued, appellant was questioned by the officers and, during the interrogation, made and signed two written statements. Both statements were introduced in evidence, certain incriminating portions being offered by the State and other portions of an exculpatory nature being offered by the appellant.

In the first statement, appellant admitted going on the two occasions to the service station where the prosecutrix' husband was employed on the night in question but, in effect, denied going to the home of the prosecutrix and having carnal knowledge of her. In such statement, appellant admitted, however, that the pencil and cigarette lighter found in the bed of the prosecutrix belonged to him. In the second statement, appellant admitted going to the home of the prosecutrix on the night in question, entering the house, and asking the prosecutrix to have intercourse with him. While the entire statement, which was introduced in evidence, does not appear in the record, that portion which does appear reflects that appellant stated:

'I asked her to have intercourse with me and she said she was afraid her husband would come in. She laid down on the bed * * * but she did not try to push me off or put up any type of struggle.'

Certain clothing of appellant was introduced in evidence, including a pair of white pants, a white shirt, and a pair of shorts worn by the appellant which, upon being examined by Chemist Charles Smith of the Texas Department of Public Safety, was found to contain seminal stains thereon.

Testifying as a witness in his own behalf, appellant denied having gone to the home of prosecutrix on the night in question and having intercourse with her. Appellant also denied that the cigarette lighter and pencil found in...