Palm v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Krueger
• Citation: Palm v. State, 195 S.W.2d 354, 149 Tex.Cr.App. 456 (Tex. Crim. App. 1946)
• Decision Date: 12 June 1946
• Docket Number: No. 23393.,23393.
• Parties: PALM v. STATE.

195 S.W.2d 354

PALM v. STATE.

No. 23393.

Court of Criminal Appeals of Texas.

June 12, 1946.

Rehearing Denied June 28, 1946.

COPYRIGHT MATERIAL OMITTED

Commissioners' Decision.

Appeal from Criminal District Court, Bexar County; W. W. McCrory, Judge.

Harold Lee Palm was convicted of rape, and he appeals.

Affirmed.

T. P. Henley and Guy Bonham, both of San Antonio, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is rape. The punishment assessed is death.

Appellant brings forward eighteen complaints, each of which he contends presents reversible error.

His first contention is that the evidence is insufficient to justify and sustain his conviction. With this we cannot agree.

The State's evidence, briefly stated, shows that on the night of the 9th day of October, 1945, the parents of the injured girl went to a party at the home of a friend and left their daughter and small son at home. During their absence and before the children had retired for the night, someone cut the screen on the window, entered the home, and with a pistol commanded the children to go through the window through which the uninvited visitor had entered. He then marched them out into a vacant lot grown up in weeds, where he tied the boy's hands and feet, and then assaulted the girl and had carnal knowledge of her by force and threats. The record shows that in the struggle with her assailant she obtained possession of his pistol and threw it in the weeds where it was later recovered by the officers. It was a .32 caliber double-action six-shooter. Immediately after the commission of the offense officers were summoned. They obtained from the assaulted party a description of her assailant. She described him as a negro man wearing dark clothes, a dark hat, a silver ring on his left hand and a short mustache. She also described his approximate height and weight. On the night in question a slow rain was falling, and the ground and weeds were wet. Appellant's wife was employed as a maid by the parents of the injured girl. The maid and her husband (the appellant) lived in an apartment over the garage which was located on the premises of the injured girl. While on the premises, the officers noticed appellant on the porch of the garage apartment, and he seemed to fit the description given to them by the prosecutrix. They went to his apartment and talked to him. They noticed his mustache and also the silver ring on his left hand, but he was not wearing any clothes which corresponded with the description given them by the injured girl. They asked the appellant's wife for permission to look the premises over which she readily gave. As a result of the search of the premises they found wet clothes of the description that had theretofore been given them by the prosecutrix. They found that his shoes had been washed and were still wet. His shirt had some bloodstains on it. This shirt was taken to a chemist in the State Department of Public Safety, who analyzed the same and found the blood to be type "O". The injured female's blood was also analyzed and found to be of that type. In the struggle the girl was struck in the face, her teeth were knocked back, her lips was cut, and she was also cut on the neck with a knife. She bled rather profusely.

Mr. Lacey, a fingerprint expert, took fingerprints from the window of which the screen had been cut and through which the intruder had entered the house. These fingerprints corresponded with those of appellant's fingers.

Abe Seigel, who is in the jewelry and loan business, testified that on the 27th day of September, 1945, appellant pawned a .32 caliber pistol with him for five dollars; that he gave appellant a pawn ticket which the witness identified; that on October 8, 1945, appellant redeemed the pistol and surrendered the pawn ticket. After appellant was arrested, the injured female identified him as her assailant. She also identified him at the trial.

Penetration of the female organ by the male organ of appellant was clearly proven.

Appellant did not testify or offer any affirmative defense.

It is our opinion that the evidence is ample to sustain the jury's conclusion of the appellant's guilt. We, therefore, overrule his contention.

Appellant in due time filed and presented a motion to quash the indictment on the ground that it did not contain an averment that the injured female was not then the wife of the accused. The court overruled the motion to which appellant excepted. Whenever an indictment charges rape by force, threats, or fraud, it is not necessary that it contain such an averment. However, when the alleged female is mentally diseased so as to have no will to oppose the act of carnal knowledge or when the injured female is under the age of eighteen years and consented to the act of intercourse, then it is necessary to charge that the female was not the wife of the accused. See Belcher v. State 39 Tex.Cr.R. 121, 44 S.W.2d 1106; Wells v. State, 128 Tex.Cr.R. 318, 81 S.W.2d 89; Caidenas v. State, Tex.Cr.App., 40 S.W. 980; and authorities cited. We, therefore, overrule his contention.

Bills of Exception Nos. 2 to 7, both inclusive, disclose that Merrel W. Smith, prospective juror No. 160; Thomas W. Phelps, prospective juror No. 163; C. M. Rhea, prospective juror No. 175; W. C. Rachie, prospective juror No. 181; Allan Sparger, prospective juror No. 207; and Walter Seydler, prospective juror No. 245; each testified on his voir dire examination that he was not summoned by any officer in person or by registered mail but by a card. The defendant objected to each of the jurors for the reason that he was not summoned in compliance with the statute. The court qualified each of the bills and in his qualification thereof states that each juror attended court in response to his notice; that defendant did not file any motion to quash the venire; that no juror objectionable to the defendant served on the jury which tried him. The bills, as thus qualified by the court, were accepted by appellant and he is bound thereby. All of the special veniremen drawn for this case having appeared in court and no juror objectionable to him having been selected to serve as a member of the jury before whom he was tried, we fail to understand how or in what way any injury resulted to him as a result of the manner in which some of the jurors were summoned. Had the jurors failed or declined to appear in court at the stated time and the sheriff had been instructed to summon talesmen, then a different question would have been presented, as was the case in Kincheloe v. State, 146 Tex.Cr.R. 414, 175 S.W.2d 593, but here we have a different state of facts to deal with. In the instant case, any presumptive injury is rebutted by the court's qualification of the bills. We, therefore, overrule the same.

Bill of Exception No. 8 complaining of the action of the trial court in exempting officers who were witnesses in the case from the rule, is also qualified by the court, and as thus qualified, the bill fails to reflect error. The failure of the court to enforce the rule as to witnesses by permitting officers to testify for the State, was within the sound discretion of the court unless it is made to appear that he abused his discretion with respect thereto to the prejudice of the accused. See Brown v. State, 136 Tex.Cr.R. 567, 127 S. W.2d 295; Clark v. State, 85 Tex.Cr.R. 153, 210 S.W. 544; Shield v. State, 118 Tex.Cr.R. 509, 38 S.W.2d 76.

By Bill No. 9 appellant complains of the admission in evidence of the wearing apparel found in the garage apartment as a result of a search thereof without a search warrant. This bill is also qualified by the trial court, who states in his qualification that the search was incidental to the arrest. Besides, the State had shown that the officers had the permission of the defendant's wife to search the premises; that at the time the wife gave the officers permission to make the search, the defendant was in an automobile which was parked some distance from the premises. The bill, with the qualification of the court, was accepted by the appellant, and as thus qualified, it fails to reflect any error. In support of the opinion here expressed, we refer to the following authorities: Alejandro v. State, 116 Tex.Cr.R. 325, 31 S.W.2d 456; Cass v. State, 124 Tex.Cr.R. 208, 61 S.W.2d 500; Ellis v. State, 130 Tex.Cr.R. 220, 93 S.W.2d 438; Ennox v. State, 130 Tex.Cr.R. 328, 94 S.W.2d 473; Wheeless v. State, 142 Tex.Cr.R. 68, 150 S.W.2d 806, and cases there cited.

By Bill No. 10 appellant complains of the testimony given by D. S. Porter to the effect that the prosecutrix gave him a description of the party who had outraged her, repeating the description given by her, to which defendant objected on the ground that the same was improper and prejudicial. The court admitted it on the theory that it showed the identity of the defendant which led to his arrest, and was a part of the res gestae. There is nothing in the bill which negatives that it was res gestae. This bill appears to us to be without merit, and it is overruled.

By Bill of Exception No. 11 he complains of the testimony given by D. S. Porter, a police officer, to the effect that he heard Mr. Christoph, a deputy sheriff, ask Willie Palm, wife of the defendant, if it would be all right to search her premises, to which she replied, "Yes." Appellant objected to the question on the ground that he was not present; that it was hearsay, incompetent and prejudicial. This bill is also qualified by the court who states in his qualification thereof that this testimony was admitted for the sole purpose of determining the validity of the search and was limited to that purpose; that the defendant was not present but was some distance away at the time; that Mrs. Housman had theretofore testified that the servant's quarters were a part of her premises and were occupied by Willie Palm incident to her employment; that...