McNutt v. State, 30538
| Decision Date | 11 March 1959 |
| Docket Number | No. 30538,30538 |
| Parties | James Henry McNUTT, Tppellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joe McMicholas and Hugh Snodgrass, Dallas, for appellant.
Henry Wade, Dist. Atty., James K. Allen, Homer Montgomery, John J. Mead, Jr., and Merle Flagg, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is statutory rape; the punishment, 30 years.
Prosecutrix, a 14-year old Dallas girl, testified that the appellant came to her home in an automobile, that she left with him and remained in his company and away from hom for approximately three weeks, during which time she had repeated acts of intercourse with the appellant.
The appellant was arrested in the State of California and returned to this State for trial.
Appellant did not testify or offer any evidence in his own behalf.
We shall discuss the facts more fully in connection with the contentions advanced by diligent court-appointed counsel in brief and argument.
He first contends that the court erred in permitting the prosecutrix to testify concerning a telephone conversation with the appellant. The court did not admit the details of the conversation. We have concluded that no error is shown. Massey v. State, 160 Tex.Cr.R. 49, 266 S.W.2d 880.
He complains of a statement made by the State's counsel concerning a witness which he asserted had been subpoenaed in the case. There is an entire absence of any showing in the record that the witness had not in fact been subpoenaed, and therefore there is no showing of had faith.
He next contends that the court erred in permitting the prosecutrix to testify about her conversation with the appellant on the night she left home concerning their plans for her to enter prositution with the appellant acting as her procurer, about his suggesting an act of sodomy to her, about an act of intercourse for hire she had with another man on the same night, giving the money to the appellant and about having had other prostitution dates while she was with the appellant.
The State was not required to elect the act of intercourse upon which it would rely, and no effort was made to require such an election. The facts here adduced show one continuous course of conduct or transaction during which the 14-year old prosecutrix was having frequent acts of sexual intercourse with appellant, and each fact was in such close juxtaposition to such acts and to each other as to render them all admissible. McCoy v. State, 144 Tex.Cr.R. 309, 162 S.W.2d 976; Sims v. State, 156 Tex.Cr.R. 218, 240 S.W.2d 297; and Thompson v. State, Tex.Cr.App., 310 S.W.2d 108.
Appellant relies upon Couch v. State, 135 Tex.Cr.R. 479, 121 S.W.2d 367. A...
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Crawford v. State
...coerced and could have ended the relationship at any time. Thus, as in Bates, supra, an election was required. McNutt v. State, 168 Tex.Cr.R. 27, 322 S.W.2d 622, 624 (1959), upon which the State relies, is inapplicable. The issue in that case was the admissibility of the extraneous offenses......
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Phillips v. State
...29. See O'Neal, 746 S.W.2d at 772-73. 30. See TEX.CODE CRIM. PROC. art. 38.37. 31. 523 S.W.2d 685 (Tex.Crim.App.1975); 168 Tex.Crim. 27, 322 S.W.2d 622 (1959). 32. Crawford v. State, 696 S.W.2d 903, 906 33. Steele, 523 S.W.2d at 686. See also Bethune v. State, 363 S.W.2d 462, 464 (Tex. Crim......
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Crawford v. State
...which act of intercourse was being relied upon for conviction. The State relies heavily on this Court's holding in McNutt v. State, 168 Tex.Cr.R. 27, 322 S.W.2d 622 (1959) for the contention that the State was not required to elect as to an offense that was to be relied upon by the State fo......
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Steele v. State
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