Perbetsky v. State
| Decision Date | 17 April 1968 |
| Docket Number | No. 41190,41190 |
| Citation | 429 S.W.2d 471 |
| Parties | John PERBETSKY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joe M. Joiner, R. C. Slagle, III, Sherman, for appellant.
Dean Martin, County Atty., Clifford Powell, Asst. County Atty., Sherman, and
Leon B. Douglas, State's Atty., Austin, for the State.
Rape is the offense; the punishment, fifteen years.
Appellant, because of his indigency, was represented at the trial by court-appointed counsel, who also represents him on this appeal.
The indictment charged rape by force, threats, and fraud.
The prosecutrix, a widow, fifty-nine years of age on the date of the alleged offense, lived in Colbert, Oklahoma, and was a licensed vocational nurse in a hospital in the city of Sherman, Texas. It was her custom to commute from her home to her place of employment. She testified that on November 16, 1966, after getting off from work around 11 o'clock, p.m., she started home. While traveling in her automobile on Highway 75 in the south part of Denison she observed a car behind her with the lights blinking. When the car was driven around beside her automobile, a man in the other car, whom she positively identified as the appellant, motioned to her back tire 'as if it was flat.' She 'pulled' over to the shoulder and stopped, then got out to see about the tire. As she started around to do so, appellant, who had stopped his vehicle behind her, grabbed her from behind and started trying to put her in his car. When the prosecutrix began to scream, appellant put his hand over her mouth, told her not to scream, and threatened to kill her if she did. Appellant then by 'main force' put her in the front seat of his car and, after pushing her down partly on the seat and partly on the floorboard, drove the vehicle some two to four miles out on the Bells Highway and stopped on the side of the road. Before the car stopped, the prosecutrix had attempted to get out and appellant grabbed her and threatened to kill her if she tried to escape again. After stopping the car appellant told the prosecutrix to take off her clothes, and several times threatened to kill her. After she removed some of her underclothing, appellant proceeded to have sexual intercourse with her, more than once. They also engaged in abnormal sexual acts. Thereafter, appellant returned to Denison to where the prosecutrix's car was parked and let her out. After contacting a policeman, the prosecutrix then went to a hospital where she was examined by a doctor.
When asked, on direct examination, why she allowed appellant to perform the sexual acts upon her the prosecutrix stated:
And when asked, on redirect examination, why she engaged in the sex acts with appellant, she stated:
'Well, because I was, I realized, I thought my life was in danger (sic) and he had threatened to kill me and he made me, convinced me he would, and I was just afraid not to submit.'
Testifying as a witness in his own behalf, appellant--in substance--denied that he raped the prosecutrix, and stated that on the night in question he was drunk. Upon cross-examination, he repeatedly stated that he could not deny the acts and events which had been related by the prosecutrix because he did not know.
The court submitted to the jury the issue of appellant's guilt of rape by threats, defining in his charge the term, 'threats,' in the language of Art. 1185, Vernon's Ann.P.C.
We first overrule appellant's contention (grounds of error Nos. I and II) that the evidence is insufficient to sustain the conviction because the proof failed to show that the prosecutrix was threatened in such manner as to reasonably create a just fear of death or great bodily harm and that there was no evidence that she made every reasonable effort to resist.
The threats shown by the evidence to have been made by appellant--twenty-nine years of age, weighing two hundred twenty pounds, and a heavy equipment operator by trade--against the fifty-nine-year-old prosecutrix, who weighed one hundred forty-two pounds, were sufficient under the facts and circumstances to warrant a finding by the jury that such threats might have reasonably created in the mind of the prosecutrix a just fear of death or great bodily injury. The testimony of the prosecutrix was also sufficient to warrant the jury's conclusion that appellant had carnal knowledge of her without her consent and against her will.
In his grounds of error Nos. III and IV, appellant insists that the court erred in denying his motion requesting that the entire record of a previous trial (some two months before, which resulted in a hung jury and mistrial) be reduced to writing and made available to him and his court-appointed attorneys for their use in the instant case; also that the court erred in denying his motion for a continuance for a reasonable time 'to see if funds' were available to obtain the record, after refusing to order a transcript thereof furnished to appellant.
We are aware of no law in this state which requires that an indigent defendant be furnished the record of a prior trial which resulted in a hung jury for use in a subsequent trial. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, cited by appellant, involved the question of furnishing indigent defendants with a transcript for the purpose of appellate review. We are not inclined to apply the reasoning of the Supreme Court of the United States in that case to the instant case, as did the Supreme Court of Illinois under similar facts in People of the State of Illinois v. Miller, 35 Ill.2d 615, 221 N.E.2d 653. In passing upon such contention it should be observed that appellant was represented by the same court-appointed attorneys at both trials and that his motion requesting that the record of the first trial be reduced to writing and furnished him was filed only four days before the instant trial began. In refusing to grant such motion, the court did not err. Appellant's oral motion for a continuance was also properly overruled. The grounds of error are overruled.
In his ground of error No. V, appellant complains of the court's refusal to declare a mistrial, upon motion by appellant at the conclusion of the testimony, on the ground that the court had erroneously excused Steve Bryant...
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