Most v. State
| Decision Date | 10 February 1965 |
| Docket Number | No. 37649,37649 |
| Citation | 386 S.W.2d 537 |
| Parties | Jim James MOST, Appellant. v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Don M. Wilson, Charles B. Rose, Dallas, for appellant.
Henry Wade, Dist. Atty., Jim Miller, Neil English and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The conviction is for rape by threats; the punishment, 99 years.
On Friday night, September 6, while the husband of the prosecutrix was at work away from their trailer home, and their daughter, age two, was asleep in her room, the prosecutrix, after locking the doors and retiring was awakened about 1 A.M. by the sound of footsteps in her bedroom. Although she could not see the man's face because the room was dark, she could see the shape of a man about the size of her husband standing at the foot of the bed, and asked, 'Is that you, Doug (husband)?' After the man replied 'Yes' she believed he was her husband. When she smelled the odor of perspiration and alcohol as the man placed his knee on the bed, she knew he was not her husband, and immediately ordered him to leave. Then, 'He told me to hush up that he had a buddy with a gun on my baby.' This frightened her and she lay still. He ordered her to take her pants off and when she didn't he reminded her that his buddy had a gun on her baby, but she lay there because she was too scared. After he repeated the statement about the gun and her daughter four times, she removed her pants. Then he ordered her to guide his private parts into hers, and when she did not do so he repeated his order two or three times and reminded her of his buddy who had a gun on her baby, and she placed his private parts into her female parts. The prosecutrix testified that at this time she was under the fear of threats toward her baby and also in fear of bodily injury to herself and her child, and that the act of intercourse was without her consent. When he had completed the act of intercourse, he told her to lie there about ten minutes and that his buddy would be in there with her baby. After the prosecutrix heard her assailant leave the trailer, she went to her daughter, whom she found to be all right. Being unable to reach her husband by telephone, she called neighbors who notified the police. The officers took her to a hospital where she was examined by a physician, who found male spermatozoa present in her genital organs.
About 3 A.M., Tuesday, September 11, two men who were neighbors of the prosecutrix saw a man trying to open the front door of her home. As they approached, the man turned and when he was told by one of the witnesses to 'freeze', the other witness testified that, 'He said he didn't have anything to do with the attack, that he was only chasing some boys away from the trailer.' In a short time the officers arrived. They found a .22 calibre pistol in the waistband of appellant's trousers and took him into custody.
The written statement of the appellant made to Officer Boyd, which appellant signed, was shown to have been voluntarily made, and complies with the provisions of Art. 726, C.C.P. After a hearing on the voluntary nature of the written statement, outside the presence of the jury, it was admitted in evidence. The statement reads in part, as follows:
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...cause her to yield to the (accused) and must be sufficient to create a just fear of death or serious bodily injury. 11 Most v. State, 386 S.W.2d 537 (Tex.Cr.App.1965). See also Jackson v. State, 470 S.W.2d 201 (Tex.Cr.App.1971); Longoria v. State, 159 Tex.Cr.R. 529, 265 S.W.2d 826 (1954); D......
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