Mirick v. State

• Citation: 204 S.W. 222
• Decision Date: 22 May 1918
• Docket Number: (No. 5017.)
• Parties: MIRICK v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

204 S.W. 222

MIRICK v. STATE.

(No. 5017.)

Court of Criminal Appeals of Texas.

May 22, 1918.

Rehearing Denied June 19, 1918.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

J. E. Mirick was convicted of rape, and he appeals. Affirmed.

R. S. Phillips, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of rape of Nellie Pannell, a little cripple girl 11 years old, and his punishment assessed at 99 years in the penitentiary. The evidence was amply sufficient to sustain the conviction. The court's charge, together with those specially requested by appellant, which were given, fairly, fully, and aptly submitted every question necessary and proper to be submitted. There was no objection to the charge.

The rape was shown to have been committed on the night of December 25, 1917. The indictment was preferred on December 27th. Appellant was then under arrest and confined on the charge. Doubtless, as the statute requires, he was duly served with a copy of the indictment. The trial was set for January 2, 1918. A special venire was duly ordered and summoned to appear on that date and were then in attendance. The record shows that some 20 minutes before the case was called for trial the county attorney discovered that the indictment had been lost. He thereupon filed a written motion so stating, and attached thereto what he alleged was a substantial copy of the original indictment. The court then made an order to the effect that the county attorney had suggested the loss of the indictment, and that the court was of the opinion that the state was entitled to, and granted leave to, substitute the indictment. It seems at that time the court did not enter on his docket that the original was in fact substituted, but later in the minutes of the court had entered an order to that effect. It appears that appellant and his attorneys were present when all these proceedings occurred. Appellant has three bills of exception on the subject. He claimed at the time that he had the right to contest such substitution and that he desired to do so; but he did not then, nor at any other time, make any such contest. From the record there can be no doubt but the substituted copy was in truth and in fact a true copy of the lost original. It was held by this court in Bowers v. State, 45 Tex. Cr. R. 188, 75 S. W. 299, that the only contest which can be made when a lost indictment is attempted to be substituted is that such substitute is not a substantial copy of the original. As stated, appellant only a few days before the loss and attempted substitution of the indictment had been served with a true copy thereof. He doubtless still had that. But whether he did or not, there is no intimation in this record that the substitute was not a true and correct and substantial copy of the original. The proceedings in making this substitution were substantially in accordance with the statute and decisions thereunder. 2 Vernon's Crim. Stats. p. 249; 1 Branch's Ann. P. C. p. 268.

When the case was called for trial January 2d, the state announced ready. Appellant made a motion for a continuance, which was overruled. Thereupon began the selection of the jury from the special venire. The trial proceeded until some time next day. After nine jurors had been selected and sworn appellant then made a motion for a change of venue, claiming there was so great a prejudice against him that he could not obtain a fair and impartial trial. The state filed a demurrer to this on the ground, among others, that the application came too late, and the state further contested the said motion, denying everything therein, and controverted the knowledge of the compurgators. The court sustained the state and overruled the motion for change of venue. There was no error in the action of the court. 2 Vernon's Crim. Stats. p. 339; 1 Branch's Ann. P. C. p. 178. Besides, the bill presenting this matter was not filed until more than two months after the court had adjourned for the term. The statute and decisions require that such bill shall be filed during term time; otherwise this court is prohibited from reviewing the question. 2 Vernon's Crim. Stats. p. 831.

Some time later during the trial appellant presented to the trial judge an application for a writ of habeas corpus, so as to try to get bail during the further pendency of the trial. This was clearly too late, and the court did not err in refusing to grant the application at the time. Muldrew v. State, 73 Tex. Cr. R. 465, 166 S. W. 156, and authorities there cited.

The little girl, Nellie, testified in effect that shortly prior to the night the rape was alleged to have been committed the appellant took her upon his lap, showed her his privates, and asked her something nasty, and said, "Let's have a bit;" and on another occasion tried to pull up her dress. She did not and could not testify that appellant had sexual intercourse with her on said Christmas night because she swore, and the testimony of other witnesses and the physical facts unquestionably showed, that that night after appellant had enticed and inveigled her into his room and locked the doors he gave her intoxicating liquor, certainly, and perhaps also dope, which rendered her unconscious, and she remained in a stupor and in that condition until sometime about the middle of the next day. The testimony of other witnesses and the physical facts practically demonstrated that about 12 o'clock, or just after, Christmas night, appellant ravished her. Appellant, in cross-examination of her, or otherwise, in no way attempted to lay a predicate to impeach her or any of her testimony. He, however, introduced a Mrs. Stein, who testified for him that two or three days after appellant's alleged rape of the little girl, she (the witness) had a talk with Nellie with reference to what appellant had done and said to her, and that in that conversation Nellie said that the appellant never mistreated her. Appellant has a bill complaining that upon the objections of the state Mrs. Stein was not permitted to answer further that on said occasion Nellie had stated to her that appellant never had said anything ugly to her; that he always conducted himself properly before her; never promised her anything out of the way; and that he never showed his private parts and never did take her upon his lap and say ugly things to her.

The state objects to the consideration of the bill presenting this subject because, among other things, it does not state what the objections of the state were, nor on what ground the court refused to permit the witness to so testify. The state's objections to the bill are well founded. 2 Vernon Cr. Stats. p. 542, note 29. This court cannot intelligently review the ruling of the court because of said defects. Many reasons could have been given, and probably were, why this claimed testimony of this witness was inadmissible. One alone would have...