Merkel v. State

• Decision Date: 09 December 1914
• Docket Number: (No. 3305.)
• Citation: 171 S.W. 738
• Parties: MERKEL v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 738

MERKEL v. STATE.

(No. 3305.)

Court of Criminal Appeals of Texas.

December 9, 1914.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

J. G. Merkel was convicted of rape by force or threats, and he appeals. Affirmed.

D. A. McAskill, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of rape by force or threats on Esther Koch, a young girl about 16 years of age, committed on or about July 17, 1913.

Some of the facts are established without any contradiction. Esther was a young German country girl, the daughter of a German Methodist preacher. Very shortly prior to the alleged rape, she had lived in San Antonio as a servant for her aunt, who ran a rooming house. She was unfamiliar with the city of San Antonio. She had never seen nor heard of appellant prior to Sunday night, July 13, 1913, just three or fours days before the alleged rape. Appellant was a German 23 years old at the time of this trial in January, 1914. Something like 2½ years before the alleged assault, he had married, but some year and a half before then had separated from his wife, but was not divorced from her. After his separation from his wife some year and a half before the alleged rape, he met a German woman, recently from Germany, whose name was Katy Sigmund, and he soon began living in adultery with her, and continuously so lived with her up to the time of the commission of this offense. He had gotten her pregnant. He had been living about San Antonio some months, but just a short time before this offense he moved in rather a sparsely settled portion of the country four miles from the city of San Antonio and lived at a house with the woman Katy, ostensibly as his wife, and the people in the neighborhood were so informed and regarded her. She was soon to be confined — perhaps some two months later. He wanted to hire some girl to go out to stay with her and help do the work until after she was confined. He applied to Esther's aunt for such a girl and made arrangements with her by which he could hire Esther. For the first time on said Sunday night he met and saw Esther at church, with his reputed wife, and they, together, took Esther out with them that night to their country place in their buggy. Esther only stayed with them from Sunday night until late Thursday evening or early Thursday night following, when appellant and his reputed wife, Katy, took her back to her aunt's. When she reached her aunt's she was crying, in much distress, and at once told her aunt and uncle and others, in effect, that appellant had raped her. The next day two physicians examined her, and both testified that they examined her vagina, found the hymen ruptured, the vagina lacerated, and showed to be of recent origin. One of the physicians, Dr. Shropshire, testifying:

"She was lacerated, torn, evidently somebody had used her, had intercourse with her, or used their fingers, one or the other. * * * The hymen was ruptured. It looked to be of recent occurrence. It was black and blue as though it was extravasated, the blood under the skin."

Of course, no statement of facts can portray the testimony of any witness the same as if the witness was seen and heard by the jury and lower court; but we will here give her testimony on direct examination substantially as given in the statement of facts:

"My name is Esther Koch. My father is Rev. J. F. Koch. I know J. G. Merkel. I first met him on Sunday night at the German Methodist Church. A lady was with him whom he called his wife. He did not introduce me to her, but I heard him call her his wife. From there I went with them to their home four miles out of San Antonio, somewhere in the neighborhood of the cement works. Nothing occurred the night we got out there. I slept in the room where both of them were. The defendant always wanted to kiss me, and I told him, no, sir; my father learned me better, and I would have none of that. That occurred several times. The first time he tried to kiss me was on Tuesday, the second day I was there. That was in the house. His wife was with us there; it was in her presence. He would always want to take hold of me, and I would push him away. I said I would not have that. We were all in the kitchen at one time" (this seems to have been Wednesday morning), "and he picked me up and carried me out. I fought as much as I could when he picked me up; I wanted to stay in the kitchen with his wife. He put me on a cot" (this, we take it, was Thursday evening, or, at any rate, when he had the act of sexual intercourse), "took off my clothing, and my underwear. While he was taking off my underwear, I fought him as much as I could. I was crying and hollering. As soon as he took me up I began to cry. I asked him to let me alone. He was by the side of the bed when he took my underwear off, and when he was taking my underwear off I resisted him as much as I could; I fought him. I was unwilling for him to take my underwear off. I did not agree to any of these things I have testified to. After he took my underwear off, he got on the bed and got on me, and when I cried out he held my mouth shut. He told me if I didn't quit hollering he would cut my throat, and after awhile he would cut his. This was after we got through. I saw him have a knife in his hands. I believe the knife was shut. When he got on me, he took out his privates and put his privates in me. I was refusing to let him do that. It caused me a whole lot of pain. After he had finished, he went to his wife; she had fainted. She was just by the side of the bed where I was, and I was crying. After he had finished, we begged him to take me home. I begged him, and she begged him. He said, no, she wasn't able to go, and he couldn't bring me home. I didn't know the way home, I had never been in San Antonio before I came to stay with my aunt. He told me if I told what had happened he would go to jail and my name would be no account any more. My period of sickness had come on a short time before this, and after he had finished with me I saw some blood, about a wash pan full. I was sitting over the wash pan so the blood could run into it. His wife afterwards begged so much that he brought me home, and when he brought me home it was in the afternoon, dark. He took hold of me twice while I was out there. He took hold me the day before, for the first time; took hold of my hands and dragged me along on the floor and threw me on the bed. He wanted to do me, and I said, `Let me alone.' I was crying at that time. He said he wanted to play with me. He put his hands on my underwear, and when he took my underwear off I told him, `No.' I used the German language in talking. I only speak English since I am here, just a little at school. Mr. Merkel told me if I told anybody what had occurred he would not bring me home, and I told him I wouldn't say anything. After we started home, he wanted to turn back if I wouldn't promise not to tell. When I got home, I told my auntie, and my uncle, and all of them. I told them as soon as I got home."

Taking her testimony as a whole, she shows that he had intercourse with her only once; that he first tried to do so on Wednesday morning; she stating on cross-examination:

"On Wednesday morning Mr. Merkel came into the kitchen and dragged me out by one hand, and laid me down on the bed, unbuttoned my drawers, and took them off, and did something to me; but he did not put his private organ in my private organ that morning."

Appellant admitted that he had intercourse with her on Thursday morning, and was about to have intercourse with her again that evening; but his reputed wife was present and raised so much trouble, and fainted, that he desisted.

The appellant, by his testimony and that of said woman with whom he lived in adultery, would show that this 16 year old, inexperienced, country girl beguiled him, and that she induced him to have sexual intercourse with her in the presence of said woman and under the revolting circumstances shown. In other words, that she induced him to copulate with her, and that it was not only willingly done on her part, but at her solicitation. The jury did not believe this, although the issue was submitted in his favor by the court in the strongest possible way for him.

In our opinion the evidence was sufficient to justify the conviction, and we cannot disturb the verdict of the jury. The court, in his charge on this issue, submitted everything that the law would authorize in appellant's favor. No objection is made to the charge on this question. Appellant did request a charge for peremptory acquittal, but this was properly refused.

Appellant made a motion to quash the indictment, because the grand jurors' names were known publicly and published in the newspapers some 40 days before the term of court. No challenge of them or either of them was made at the time they were impaneled. The statute (C. C. P. art. 409) is:

"Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and, in no other way, shall objections to the qualifications and legality of the grand jury be heard."

This law shows appellant's motion could not be sustained. All the decisions are to the same effect. See some of them cited under said...