Morrow v. State

• Decision Date: 16 June 1965
• Docket Number: No. 38345,38345
• Citation: 396 S.W.2d 386
• Parties: Hubert Wayne MORROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 386

396 S.W.2d 386

Hubert Wayne MORROWN, Appellant, v. The STATE of Texas, Appellee.

No. 38345.

Court of Criminal Appeals of Texas.

June 16, 1965.

Rehearing Denied Oct. 20, 1965.

Second Motion for Rehearing Denied Dec. 15, 1965.

D. B. Mason, Dallas, Phil Burleson, Dallas (On Appeal Only), for appellant.

Henry Wade, Dist. Atty., Ross Teter, W. John Allison, Jr., John Vance and Tom Reese, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is burglary of a private residence at night; the punishment, 20 years.

The indictment alleged the burglary of the private residence of Julius C. Roberson with intent to commit a felony, to wit, to ravish and have carnal knowledge of a named female under the age of 18 years who was an occupant of said house.

Reversal is sought upon the ground that the indictment is fatally defective in that there was no allegation that the named female was not the wife of the defendant.

The indictment was not attacked in the trial court by motion to quash or by exception. We overrule the contention that it is fundamentally defective.

The word 'ravish' used in the indictment implies the use of force and want of consent and the indictment is sufficient to charge the offense of burglary of a private residence at night with intent to commit the felony offense of rape by force. Edworthy v. State, Tex.Cr.App., 371 S.W.2d 563; Rodrigues v. State, 166 Tex.Cr.R. 1, 308 S.W.2d 39.

There were no objections to the court's charge and no requested charges were refused.

The evidence shows that at about two o'clock A.M. appellant opened the door and entered the upstairs apartment occupied and used by Julius C. Roberson as a place of residence, and entered the room in said apartment in which Mr. Roberson's 17 year old step-daughter, a school girl, was sleeping. His baby boy and 12 year old son were also in the room.

Appellant was seen by Mr. Roberson's step-son, Carl Dan Lee, going up the stairs. Carl Dan followed and apprehended appellant in his sister's room. He was standing beside the girl's bed naked, with his sexual organ in his hand.

Carl Dan hit him and attempted to hold him but appellant went across the bed and out the upstairs window. Thinking it was someone he knew, Carl Dan said 'Wess?' and appellant said 'Yes, man this is Wess (or West).' Carl Dan managed to hold him by the wrist until other members of the family responded to his call and helped him get appellant back into the room. His mother, step-father and brother joined Carl Dan in assaulting appellant and in attempting to restrain him. He got downstairs and out of the apartment building before he was finally subdued by Carl Dan and his 18 year old brother. They restrained him until officers responded to their mother's call and took appellant into custody. He told the officers his name was 'Smith'.

Appellant's clothes, neatly folded and stacked, were found in a vacant downstairs apartment, the window of which had been broken. The lady occupant of another downstairs apartment, who was alone at the time, had reported to Carl Dan that someone was trying to get into her apartment through a kitchen window. His response to her report accounted for his being downstairs and seeing the man go up the stairway.

Appellant did not testify. The only evidence offered in his behalf was the testimony of his companions of the night to the effect that he was intoxicated when they separated from him at about 1 or 1:30 A.M.

The state offered the testimony of the arresting officer that appellant was not intoxicated when arrested.

The 17 year old girl named in the indictment testified...