McIntyre v. State

Decision Date31 January 1962
Docket NumberNo. 34153,34153
Citation360 S.W.2d 875,172 Tex.Crim. 510,83 S.Ct. 130
PartiesBennie Lee McINTYRE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

John Saleh, Lamesa, Mitchell Williams (Court-Appointed), Tahoka, Robert Penrice, Temple, for appellant.

George H. Hansard, Dist. Atty., Lamesa, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is rape; the punishment, death.

Appellant's plea of guilty was amply supported by the positive testimony of the prosecutrix and appellant's confession, the voluntary nature of which is not questioned. It was shown that appellant entered a farm house in the absence of prosecutrix's husband and there, by force and by threats to kill, had carnal knowledge and committed an act of sodomy upon her.

Appellant did not testify in his own behalf but called his mother and his uncle, who established that he had never before been convicted of a felony.

We shall discuss the contentions advanced in a highly professional manner by appellant's two court-appointed attorneys, both by brief and in argument.

By bill of exception No. 1, it was shown that during the course of the selection of the jury an emergency arose in the family of a juror who had been accepted and qualified. When such fact became known, the court stated in open court that the State, the defendant and his attorneys would have to agree to excuse the juror or a mistrial would be declared. At this juncture, defense counsel asked for time to consult about the matter; the defendant was present 'during the discussion,' at the conclusion of which defense counsel stated the defendant would agree to dismiss the juror and, because defendant made no statement, the court considered that his attorneys were speaking for him.

Both the State and appellant rely upon the relatively recent opinion of this Court in Houston v. State, 162 Tex.Cr.R. 551, 287 S.W.2d 643. While it is true that the court in the case at bar was not as careful as the trial judge in Houston, yet it appears that he did what he thought at the time was necessary to secure the assent of the accused. He made the statement in accused's presence that unless the accused himself agreed a mistrial would be declared. A conference was then called for, and time was allowed for such conference, at the conclusion of which counsel for appellant state that his client agreed, and appellant remained silent. By such silence, he lead the court to believe that his attorney was speaking for him. The case at bar differs from any which has been called to our attention because during the voir dire examination of this particular juror, who was later excused, appellant challenged such juror for cause. While it is true that the court overruled the challenge, the fact remains that such juror was at one time not of appellant's liking. It would be a strange rule which would permit an accused to complain of the excuse of a juror when he had already indicated that he did not want such person to serve on his jury.

Appellant next contends that the court erred in failing to grant his motion for change of venue. We have been cited a number of authorities in support of his position, but note at the outset that in each case the plea was that of not guilty. Here, the issue of guilt and opinions as to guilt pass out of the case when the plea of guilty is entered. There remains then only the question of punishment. We look to the voir dire examination of the jurors who actually served, in line with the reasoning employed in Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239, to determine if they had any preconceived opinion that the supreme penalty was called for in this case. At most, it can be said that two jurors said they had heard discussions by unnamed parties to the effect that if appellant was found guilty the electric chair was the proper punishment. Each of them denied that they had ever formed or expressed such an opinion themselves. We conclude that the court did not abuse its discretion in denying the motion for change of venue. See also Jones v. State, 156 Tex.Cr.R. 248, 240 S.W.2d 771; Gordy v. State, 160 Tex.Cr.R. 201, 268 S.W.2d 126; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; and Kizzee v. State, 166 Tex.Cr.R. 191, 312...

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