Naugle v. State

• Decision Date: 13 May 1931
• Docket Number: No. 14152.,14152.
• Citation: 40 S.W.2d 92
• Parties: NAUGLE v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W.2d 92

NAUGLE v.STATE.

No. 14152.

Court of Criminal Appeals of Texas.

May 13, 1931.

Rehearing Denied June 24, 1931.

Commissioners' Decision.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

W. J. Naugle was convicted of rape, and he appeals.

Affirmed.

J. E. Clarke and Frazier & Averitte, all of Hillsboro, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for 25 years.

It was alleged in the indictment that prosecutrix, Mary Marshall, was under the age of 18 years.She testified that she was 13 years of age.It was uncontroverted that appellant drove to the home of prosecutrix during her mother's absence, and advised prosecutrix that a lawyer (naming him) in Hillsboro wanted to see her.Accompanying appellant was Leonard Throckmorton, who drove with the parties to the scene of the offense.Touching her ride with appellant in his automobile and his mistreatment of her, prosecutrix testified, in substance, as follows: Appellant urged her to let him take her to town to see the lawyer.She demurred, stating to appellant that she did not want to go without getting her mother's consent.Answering her, appellant stated that he would take her to her mother before driving on to town, in order that she might ask her mother if she could go.Prosecutrix entered the automobile, and appellant, instead of going by the home of prosecutrix's grandmother, where her mother had gone, drove out of town.Realizing that appellant was taking her into the country, prosecutrix began to scream.She tried to get out of the car.Appellant and his companion held her.After driving some distance, appellant stopped the car, pushed prosecutrix out, and forceably took her into a field.She fought to her utmost.She begged appellant to desist, but to no avail.Overcoming her resistance, appellant had sexual intercourse with her.Appellant was drunk.He had a shotgun in the car.Two men approached while appellant was mistreating prosecutrix.An officer and another man approached and ordered appellant to release prosecutrix.Appellant refused to obey, and one of the men struck him on the head with a gun.Prosecutrix was released.Appellant had torn her clothing practically off of her.

The two men who first approached the appellant and prosecutrix testified that they saw appellant with his arm around prosecutrix's neck; that he took her down the road, she begging appellant to release her; that prosecutrix asked the witnesses to rescue her from appellant; that they immediately reported the matter; that before reaching the scene they had heard prosecutrix scream.The officer and his companion testified to having rescued prosecutrix from appellant.The torn clothing of prosecutrix was introduced in evidence.The physician who examined prosecutrix testified that she had been penetrated.

Appellant did not testify in his own behalf, but sought to prove that prosecutrix was of previous unchaste character.He offered a witness who testified that he had spent the night with prosecutrix in a shed.This witness declined to say whether he had sexual intercourse with prosecutrix.Other witnesses for appellant testified that they had seen prosecutrix in automobiles at night in the company of men.

Affirming her previous chastity, prosecutrix declared that appellant alone had had sexual intercourse with her.

Appellant urges in his brief that his right of examination of the members of the special venire on their voir dire was unduly restricted, his position being that the questions he sought to propound to the individual members of the venire were calculated to elicit information which, if not affording sufficient ground of challenge for cause, would have better enabled him to properly exercise his peremptory challenges.He now seeks to invoke the principle that the right to appear by counsel, guaranteed by the Bill of Rights, carries with it the right of counsel, within reasonable limits, to examine each juror individually in order to prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute.Seearticle 1, § 10, Constitution of Texas;article 3, C. C. P.;Plair v. State, 102 Tex. Cr. R. 628, 279 S. W. 267;Holland v. State, 107 Tex. Cr. R. 582, 298 S. W. 898.The rule contended for is correct, but appellant has failed to bring himself within its operation.

Looking to bills of exception one to six, inclusive, which relate to the matter under discussion, we find nothing that apprises this court that counsel was denied the right to examine each juror individually, or that he was unduly curtailed in his right of examination.The bills show that the jurors were examined individually, and simply reflect the ruling of the court in regard to the questions embraced in the several bills.Thompson on Trials (2d Ed.) vol. 1, § 102, states the rule as follows: "Hypothetical questions, that is, questions as to what the juror would or would not decide in a supposed state of the evidence, are not allowed."

This rule was approved in Houston v. State, 83 Tex. Cr. R. 190, 202 S. W. 84.An examination of said bills 1 to 6, inclusive, discloses that the several questions which were not allowed by the court are purely hypothetical, seeking to have the prospective jurors say what their attitude would be under certain conditions, and how they would weigh certain testimony, as opposed to other evidence.We think the court was clearly within his discretionary rights in excluding the questions.

Bill of exception 8 shows that one of the talesmen was informed that the evidence would show that appellant was drunk or intoxicated at the time of the alleged offense, and that, taking the matter personally, was he ordinarily prejudiced against a man who drinks or gets drunk.The proposed juror was not permitted to answer the question.We think in this respect the court fell into error, but the bill is defective, in that it fails to show that the talesman served on the jury at all.

Bills of exceptions 10 and 12 relate to the same subject-matter.As disclosed by said bills, after counsel for appellant had elicited from prosecutrix on cross-examination that she had stated to the county attorney, shortly after the commission of the offense, that appellant did not penetrate her because he was too drunk, and, further, that after making said statement she was examined by Dr. Garrett, the state asked the witness, over appellant's objection, in substance, whether she made the same statement to Dr. Garrett that she had given on the witness stand on the trial of the case.The answer was in the affirmative.Thereafter, Dr. Garrett was called to the witness stand by the state and testified, in substance, over appellant's objection, as to the statement made by prosecutrix to him when he examined her.This statement was consistent with the testimony given by prosecutrix on the trial.Appellant, having required prosecutrix to testify to a declaration she had made out of court which was inconsistent with her testimony upon the trial, it was proper for the state to support her in the manner disclosed by the bills of exception.In his Annotated Texas Penal Code, section 181, Mr. Branch states the rule as follows: "Where a state's witness is attempted to be impeached by showing that he has made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the present trial, it is not error to permit the state to support the witness by showing that shortly after the transaction, and before any motive or inducement existed to fabricate, he made statements of the matter similar to his testimony delivered on the trial."We deem the testimony within the rule announced by the decisions.Holland v. State, 110 Tex. Cr. R. 384, 10 S.W.(2d) 561;Wilson v. State, 111 Tex. Cr. R. 134, 11 S.W.(2d) 803;Taylor v. State, 87 Tex. Cr. R. 330, 221 S. W. 611;Johnson v. State, 42 Tex. Cr. R. 377, 60 S. W. 48.

Bill of exception No. 11 presents the following occurrence: On cross-examination, appellant elicited from prosecutrix that she had testified on a habeas corpus hearing involving the transaction out of which the indictment grew; that thereafter she went to the state of Oklahoma; that since her return from Oklahoma she had been in jail and was in jail at the time of the trial; that she was under indictment charging her with a felony.On redirect examination the state propounded to the witness a question as follows: "Now then, counsel asked you about your being in jail and having gone to Oklahoma, just tell the jury how that came about?"

Appellant objected to the question on the ground that it was not shown that he was responsible for the witness having gone to Oklahoma, and that it would be inflammatory and prejudicial for said witness to give her reasons for having gone to said state.The court overruled the objection with the statement that the witness, being under indictment, would be permitted to tell the jury why she went away.Answering the question, prosecutrix testified, in substance, that Charlie Lee had carried her to Oklahoma; that her mother and sister had accompanied them; that neither her mother nor her sister furnished the money for the trip; that she did not know who furnished the money; that she did not intend to remain in Oklahoma, but expected to return to Hillsboro; that it was not her purpose to absent herself in order that she might not be called upon to testify in the trial of appellant's case.The testimony elicited from prosecutrix by appellant on cross-examination was calculated to lead the jury to believe that she had left the state immediately after the habeas corpus hearing, for the purpose of evading the process of the court, and that her reason for so absenting herself was that appellant was not guilty of the offense she had charged him with.It was...