Massey v. State

• Decision Date: 17 December 1892
• Citation: 20 S.W. 758
• Parties: MASSEY v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 758

MASSEY v. STATE.

Court of Criminal Appeals of Texas.

December 17, 1892.

Appeal from district court, Cooke county; P. B. MUSE, Judge.

Indictment of Sam Massey for rape. Defendant was convicted, and appeals. Reversed.

Appellant was convicted of rape, and his punishment assessed at death, from which judgment he appeals. Appellant alleges in his motion for a new trial the following errors: (1) The verdict of the jury is contrary to the evidence, in this: that the evidence fails to show beyond a reasonable doubt, or to show at all, the fact of penetration. (2) The error of the court in admitting the evidence of Douglas Lamb as to remarks made by defendant on the day before the offense is alleged to have been committed, to the effect that he intended "to have some skin that night, if he had to kill the girls;" the same being irrelevant and incompetent to prove any issue in this case. (3) The error of the court in allowing Sheriff McAfee to testify that he had on the last day of the trial found a syringe, such as used in cases of gonorrhea, in the house that this defendant lived in when he was arrested, last February; the said house having since been open to any one desiring to enter. (4) The error of the court in refusing defendant's request to charge the jury as follows: "If from the evidence in this case the jury believe that the offense of rape, as charged in the indictment, was not committed, but was attempted, by the use of the means of force, to be committed upon the person of Elizabeth Smith, then the jury may find the defendant guilty of an attempt to commit rape, and affix the punishment at not less than two or more than seven years' confinement in the penitentiary." (5) Defendant did not get a fair and impartial trial, for the following reasons, to-wit: From the very day the defendant was first arrested, charged with the rape of Elizabeth Smith, the prejudice in Grayson county has been so very great, continuously up to this time, against the defendant, that he has been wholly unable to obtain a fair and impartial trial. That at the time of his arrest a mob began forming for the avowed purpose of murdering this defendant, and defendant's life was only saved by the sheriff's conduct in privately and secretly removing this defendant from the jail in Grayson county, and conveying him to the jail in Ft. Worth. That immediately after this secret removal, made in the first shades of darkness, the mob, as aforesaid, surrounded the jail, and were only prevented from attacking it by the act of the officer, who allowed a committee from the mob to search the said jail. That the people of Grayson county have threatened to hang this defendant, and still say they will hang him, regardless of law, if he is not hung by the law in Grayson county, Tex. That certain of the people of Grayson county have organized, and did organize before the trial of this case, and agreed between themselves that, if a change of venue was granted the defendant in this case, they would hang him before he left the courthouse; or if this case was continued they would hang him at once; or if he was cleared by the jury, or allowed a punishment less than death, they would at once hang him. That at all times when this defendant was brought from the jail to the courthouse, said mob was there, ready, willing, and determined to execute their threats. That on the day fixed for trial the state witnesses were not present at the opening of the court, and the case was continued until after dinner. That, before that time arrived, the injured woman, Elizabeth Smith, arrived, and, without the knowledge of the county attorney, and against his will, was placed in a prominent position on the street, where her presence and stay and appearance might the more which inflame the passion of the mob which gathered around her, so that by the opening of court it was deemed imprudent to bring this defendant out of jail. The county attorney himself advised the defendant's counsel that the case, on some pretext, should go over until the next day, so that the excited throng might disperse, and have time to cool. The case was then, upon motion of defendant's counsel, continued until the next morning, on the ground of the absence of one of the counsel appointed by the court to defend; the absent counsel being an old resident of the county, and the two present being newcomers in the county, unacquainted with the jurors and people of the county. That upon the announcement of this continuance the excited mob began moving by hundreds towards the jail, threatening to break it and hang this defendant. That, while expressing these threats and collecting arms, sledge hammers, and tools to destroy the jail, prominent and influential citizens tried to make speeches counselling moderation and obedience to the law, but they were hooted down, and the life of defendant only saved by the determined attitude of the sheriff and his force of armed men occupying the jail; the sheriff firmly warning the mob that he would shoot the first man who touched the jail door, and that he would sacrifice his life, if necessary, in the performance of his duty of protecting defendant. That the honorable district judge who tried the case had full knowledge of all the foregoing facts, and that while the mob was raging around the jail one of defendant's attorneys, appointed by the court to defend him, applied in person to the court, and asked him, of his own motion, to change the venue, as defendant could in no event obtain a fair trial in Grayson county, which the court refused to do, for the reason that it would at once precipitate an attack upon the jail, which he desired to avoid. Defendant was hampered in his surrounding in the choice of a jury, and accepted some who were disqualified by reason of having formed an opinion, for the reason that he believed he was bound to have a jury and try the case or be hanged by a mob. That the prejudice was and is so great that the members of the bar refused to defend, and the court had to require the counsel who finally defended the case to do so after they had more than once asked to be released from the duty. That while the jury were out, considering of their verdict, the honorable district judge who tried this case advised defendant's counsel to have defendant waive his right to be present at the reading of the verdict, as under all circumstances it was best to have him safely in jail. The county attorney then wrote such a waiver, which the defendant's attorney brought to the jail, and defendant signed. Defendant is informed and believes that when the verdict of the jury finding the defendant guilty, and assessing his punishment at death, was read, a wild yell of applause went up from the crowd in the court room, which was at once silenced by the court and officers, but was heard outside, and was re-echoed around the square by thousands. Defendant further says that the reason he did not file his motion for a new trial within two days after the verdict, and not before this time, is because defendant believed, if he took any steps towards an appeal, that the mob would at once storm the jail, and hang this defendant, and defendant's counsel refused to file any such motion while defendant remained in Grayson county jail, and that, since defendant has been removed, defendant's counsel has been continuously absent from the said state of Texas, until this day, June 1, 1892. Wherefore defendant prays that this motion be entertained by the court, and the verdict of the jury and judgment thereon set aside, and a new trial granted this defendant."

This motion was properly sworn to, and the prosecution introduced the following controverting affidavits: "Y. S. Creager says that he is now, and has been during this year, deputy sheriff of Grayson county, Tex. That he was in Sherman, and about the courthouse and jail, on April 20, 1892, the day Massey's case was set for trial. That during the first half of that day there was no commotion or disorder of any consequence. That soon after noon of April 20, 1892, and about 2 o'clock, a body of men went from the courthouse to the jail, and it was understood they wanted Massey, and they so said to one another. That in my opinion about 30 men in this body were interested as a mob, and about 300 were present as spectators, and they remained there for about something over an hour. That during the time they were at said jail said mob never made any demand for Massey, or anybody that had charge of him; never made any efforts to enter the jail where Massey, the sheriff, and posse were, though one of said mob had a sledge hammer and another a crowbar; nor did any of said mob ever, by turning a latch or by any other act, try to gain admission to said jail; nor did said mob inflict, or attempt to inflict, any violence upon the sheriff or any of his posse in charge of said jail and said said Massey. That it is true that, when said body of men or mob were at the jail, Sheriff McAffee told them that he did not want to hurt any of them, but that Massey was his prisoner; that it was his duty to protect him, and that he was going to do his duty, no matter if it cost him his life. That it is true that said mob showed by their acts and utterances that they had no regard for law, and some good citizens may have been acting with them; but the majority of those that this affiant saw and heard making violent talk were beardless boys and drunken men, in whom there was little, if any, harm. That this affiant stayed at the jail all night on the night of April 20th, and that there was no mob or act or demonstration of lawlessness at said jail, nor was there anything of the kind heard of in Sherman by this affiant, nor was there anything of the kind that affiant heard of on the ensuing day, when said Massey's trial commenced, nor during said trial. That during the making up...