Longoria v. State, 26665

• Decision Date: 20 January 1954
• Docket Number: No. 26665,26665
• Citation: 265 S.W.2d 826,159 Tex.Crim. 529
• Parties: LONGORIA et al. v. STATE.
• Court: Texas Court of Criminal Appeals

Page 826

265 S.W.2d 826

159 Tex.Crim. 529

LONGORIA et al. v. STATE.

No. 26665.

Court of Criminal Appeals of Texas.

Jan. 20, 1954.

Rehearing Denied March 17, 1954.

John J. Herrera, James DeAnda, Houston, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

WOODLEY, Judge.

The seven appellants were jointly indicted for rape, and upon trial upon their pleas of not guilty, were each found guilty and assessed a punishment of 10 years in the penitentiary.

Each of the appellants signed a voluntary statement which was introduced without objection. None of them testified except to show their qualification for a suspended sentence, which they had applied for.

The evidence shows that the prosecutrix, a 45 year old widow, referrd to as 'an American lady', was in company with a woman friend and two men at a pavilion in Palacios where they ate, drank some beer and played shuffle board.

The women had come to Palacios from their home in Alvin, and the prosecutrix had brought her two dogs and left them in the car.

It appears that a dance was in progress at the pavilion for Latin Americans or Mexicans, and there were a number of such on the outside of the pavilion.

About 9:30 P.M. the prosecutrix and her male companion went to the car where the dogs were, it being the purpose of the prosecutrix to walk the dogs before she and her woman companion began their return trip to Alvin.

Within a few minutes the man returned to the pavilion, leaving the prosecutrix at the car alone with her dogs.

Shortly thereafter the prosecutrix found herself and her two dogs in another car in the company of the seven appellants. The car was driven for some distance and on to a side road where each of the appellants except Longoria, the driver of the car, had sexual intercourse with prosecutrix, one a second time.

The prosecutrix testified that she did not enter the car willingly but was unable to say just how she got there. She testified that she was walking her dogs when she was suddenly joined by some of the appellants, who are Latin Americans, one of whom paid attention to her dog who had a broken hip.

She testified further that she told the appellants they had made a mistake, told them who she was and where she lived; that she thought they had made a mistake and got the wrong woman; that she begged them to let her out--take her back to where her friend was waiting to take her home; that they said she was a woman and if she did what they wanted her to do they would not hurt her; that after that she put up no defense; that she feared for her life--'just too many against me * * * I couldn't have a chance.'

After finishing with her one of the appellants produced her purse from the turtle of the car, and when she got out of the car to get the purse appellants drove away and left her. They threw away the contents of the purse which they had removed, some of which were thereafter found.

The trial court submitted the case to the jury upon the law of rape by threats.

It is contended that the evidence is insufficient to show rape by threats or to show want of consent.

Appellant Longoria, who drove the car, said in his confession:

'Somewhere between 9:00 and 10:00 P.M. I was sitting in the car with Mateo Camarrillo, the rest of the boys came to the car and they had an elderly woman with them. She had two dogs. One of them was black and the other was kind of spotty white. These boys brought this lady to the car and I asked them where we were going and they said they were going to take the lady to Alvin, Texas. We all got into my car and left Palacios driving on the Bay City road. About six or seven miles out of Palacios we turned off of the main road onto a shell road. I drove down this road a short ways and the boys all told me to stop. When I stopped I heard this lady ask, 'Are you all going to beat me up?' I heard one of the boys tell her, 'You are a woman and you know what we want.' All six of the boys, Ben Rios, George Ramirez, Mateo Camarrillo, Pete Delarosa, Abraham Rios, and Domingo Torres had intercourse with this woman. I did not touch her myself.'

Each of the other appellants confessed to having sexual relations with prosecutrix, but gave slightly varying accounts of what was said by her.

Appellant Abraham Rios related in his confession that the woman 'asked if we were going to beat her up', and she said 'You boys are not going to do anything to me are you?'

Appellant Ben Rios quoted her as saying 'Are you all going to beat me up?' to which Appellant Torres replied 'You are a woman and you know what we want.'

Appellant Delarosa confessed that he heard prosecutrix say 'If that's what you want, I don't have any choice', and also heard the statement attributed to Appellant Torres by Ben Rios. Delarosa also said that in reply to her questions they all told her they were not going to beat her up.

Appellant Ramirez confessed that prosecutrix became scared and asked if they 'were going to beat her up', and heard Appellant Torres tell her 'that she was a woman and that she knew what we wanted, and if she did as we told her she would not be beat up.' Also that he heard prosecutrix say that she had no choice; she could not help herself.

The confession of Appellant Torres reads in part as follows:

'George Ramirez, Abraham Rios and myself walked to the car where this lady was and she called us. George Ramirez done the talking to this lady. * * * One of us, I don't remember which one, asked her if she wanted us to take her to Alvin, Texas. She stuttered a little but she did not answer yes or no, but she did get out of the car with her two dogs. We then walked along with this lady until we got to our car. When we got to our car the lady said, 'Oh, so many boys.' I had my arm around this woman's waist and I told her to get in the car. She got in the back seat with Ben Rios, Abraham Rios, George Ramirez, and myself, and Ernest Longoria was driving and Mateo...