Appeal from District Court, Walker County; Max M. Rogers, Judge.
J. C. Lomax was convicted for rape, and he appeals.
Affirmed.
GRAVES, Judge.
The offense is rape; the punishment assessed at death.
This is the second appeal in this case; the opinion delivered by the court on the former appeal may be found reported in 136 Tex.Cr.R. 108, 124 S.W.2d 126.
It appears from the record that appellant made a motion in the district court of Montgomery County (being the county in which the alleged offense was committed and the indictment returned by the grand jury) to quash the indictment on the grounds of race discrimination. It seems that the court heard evidence in support thereof and upon its conclusion overruled the motion. This motion, or one of similar import, was again urged after the venue of the case had been changed to Walker County
but no evidence, if any was offered, is brought forward in the record; hence we are not in a position to review the action of the trial court on the subject.
The sufficiency of the evidence is vigorously questioned, and we set forth the whole of the prosecutrix's testimony relative to the transaction:
"I hadn't been asleep long when there was a negro waked me standing over me with a piece of pipe in his hand threatening me and he had the cover pulled off me. He threatened me by having a piece of pipe in his hand drawed on me and he called me and woke me up and said if I hollered he would kill me. The negro asked me where my husband was and then he told me not to lie to him and I was afraid to lie to him and he asked me where my husband was and I told him because I was afraid that he was somebody that knew my husband and I told him where he was. He wanted to know where the children was and I told him where they were and then he asked me what my husband done and where he worked and what time he come in and all of those questions and just asked me a whole lot of questions. He had the pipe at that time. He told me what he was there for and asked me if I was willing or not. Of course, I had to give up. I knew he had me trapped. I had to give up and I told him `yes' to save my life. He had the pipe in his hand at that time and he was up over me with it and he had an old quilt over his head and he didnt have on any clothes more than a summer knit undershirt. I could only see from his waist down and his arm because he had an old quilt wrapped about him. He had no trousers on. One arm was holding the quilt and he had the quilt over his head and around his body and one arm through the hole in the quilt. The quilt was just an old rag that I had thrown away and it wasnt any good. He threatened me and told me not to lie to him and I was scared to move or anything because I knew he had the ups on me; there wasnt anything I could do about it. That was the reason I submitted to him. Yes, sir, this negro's male organ penetrated my female organ. Yes, sir, it was against my will to submit to him. I had not seen this negro before that ravished me to my knowledge. I didnt know whether I knew him or not. This occurred in Montgomery County, Texas. After he started having sexual intercourse with me he laid the iron pipe on the bed beside him where he could get a hold of it. When he started to leave he wanted to know if he could come back and I was scared to tell him he couldnt because I was afraid he would murder me so I told him `yes', so he asked me when and I told him at any time except Sunday because I knew in reason he already knew my husband and knew where he worked and I was scared to lie to him so he asked me what time it was and how long he could stay and I told him he couldnt stay because it was about time for my husband and I wanted to get rid of him and he said its not more than nine o'clock—after he asked me when my husband would come in and I told him anywhere from twelve o'clock on then he said it isnt more than nine o'clock and I said `oh, my Lord yes, it was a lot later than that when I laid down' and then I told him where the clock was and when he seen what time it was he broke and ran and when he ran out of the tent the first thing I thought of was shooting him and the gun was in the kitchen and I ran to the kitchen to get the gun and it was unloaded and I had to climb up on top of the safe to get shells to load it with and by the time I got the shells he was too far in the woods and I ran to Mrs. Casey's for help. That is my nearest neighbor. I went to Mrs. Casey's just as quick as I could get the gun after he assaulted me and seen he was gone. Then I ran right up there. I was there in just a few minutes. There wasn't anyone I could see then at Mrs. Casey's but Billy Clark and her two children. Mrs. Casey lived about a 100 or 200 yards from my home. When I ran in Billy Clark was setting in the door where I went in and Mrs. Casey was standing at the cook-stove and I told them what happened and asked if they would go and get Mr. Hudson. Mrs. Casey and Bill Clark were the first persons I saw after the negro had assaulted me and I told them at that time what had occurred. All during the time I saw the negro he kept the quilt wrapped about him. I never did see his face at all. I saw the negro as I ran to the kitchen after the gun and he ran across the road in front of the house and when I went to get the shells from over the safe I glanced through the crack and saw him go over the fence in front of the house. He still had this quilt wrapped about him and hadn't on any clothes that I could see. I dont know where he had pulled off his clothes. I first knew the negro was in the tent when he threatened me and woke me up. The negro that ravished me weighed
about 150 or 160 pounds. That is just an estimation; I dont know. The defendant J. C. Lomax compares in heighth with that negro that ravished me and he was what I would call a medium black negro, the best I could tell in the tent as it was dark. I did not recognize the quilt that the negro had around him at that time."
On cross-examination she testified to substantially the same facts. We quote from her testimony as follows: "The first thing this person said to me was he told me not to scream or holler; that he would kill me. * * * I didnt have anything to defend myself with. * * * He asked me was I going to be with him or not; was I going to let him have it or not; he said `are you going to let me have it or not' and what could I say but `yes.' * * * I was afraid to lie to him because I was afraid for my life. * * * When he asked me would I be willing I told him I would because I knew I had to give up. * * * His right hand was free at the time of the act, yes, sir. * * * I told him he couldn't stay and he wanted to know why and I told him my husband would be in before many minutes or I would have let him stayed. I knew that if I would let him stay my husband could probably do something with him but I wanted to get rid of him because I wasnt certain when my husband would get in. * * * He asked me could he come back to see me before he got off of me; that was during the act. I told him he could because I was scared not to tell him he couldn't. I was afraid I would contrary him and he would murder me. I told him he could come back any day except Sunday. * * * I couldn't swear that this defendant is the one I saw in my house. I had not seen that negro before that I knew of and as far as I know I have not seen him since. I couldn't swear that this defendant is the person that was in my house that day and attacked me."
The appellant's confession was introduced in evidence, in part, as follows:
"I am 20 years old. I was 20 years old the 23rd day of last July. I live at New Caney, Texas with my mother and stepfather. I have been living there about four or five months. I have been working at the saw mill there, for Mrs. Prince. On Wednesday of this week, the 30th day of March, sometimes in the morning I went with Mr. Roy, I dont know his other name, out in the woods after a load of logs. I got with Mr. Roy at Mrs. Prince's saw mill, and we went on down by the depot and on down by the negro school house and from there on across Peach Creek after the load of logs. Before crossing Peach Creek we passed by a tent house. In going, this tent house was to our right, about twenty foor from the road we traveled in. As we were passing this tent house I asked Mr. Roy if those fellows was still cutting logs. When I asked him this we had passed and was stoped down there cross Peach Creek bridge. When I asked about those fellows cutting logs I meant the man that was living in this tent house, I didnt know his name. I did know that he had been working for Mrs. Prince cutting logs. I went on over with Mr. Roy, where he waited for his log buncher to come. I sit there with him for awhile until I heard a truck coming. I told Mr. Roy that I was going back to Caney, then I got out there and flagged the truck down. Then Mr. Roy said, `no you aint going'. The truck stopped and there were two white men in the truck which was loaded with ties. They let me get on the truck on top of the ties and ride on up to Caney. They let me off right on the railroad track near the depot. I got off the truck and went to my mama's house and eat. I eat sirrup and bread. There was no one at home. I dont know exactly what time it was around ten or ten thirty when I eat at home. I went on down to the East of the saw mill, and passed between Mr. Chamber's house and the saw mill, and then on down to the negro hall. There I crossed a bob wire fence between the negro hall and Mr. Rheinhardt and then...
