Perez v. State

• Decision Date: 10 May 1905
• Parties: PEREZ v. STATE.
• Court: Texas Court of Criminal Appeals

87 S.W. 350

PEREZ v. STATE.

Court of Criminal Appeals of Texas.

May 10, 1905.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Manuel Perez was convicted of rape, and he appeals. Reversed.

Hallam & Neill, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at death.

Appellant made a motion for continuance on account of the absence of one Pablo San Miguel. It may be conceded that sufficient diligence was not used to secure the attendance of this witness. But after the trial, when the materiality of the absent testimony was made manifest, a new rule applies. Subdivision 6, art. 597, Code Cr. Proc. 1895. The latter portion of said subdivision provides that, should an application for continuance be overruled, and the defendant convicted, if it appear from the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted. However, the judge put the seal of his condemnation upon this witness' testimony by stating that it was not probably true. After reading the record in this case, we cannot agree to this statement. The testimony showed a most peculiar case of rape, in which the question of consent in connection with resistance was the paramount issue, and appellant was entitled to any evidence which would tend to strengthen his defense that the copulation between prosecutrix and himself was voluntary on her part. It certainly cannot be said, from the record, that the evidence of want of consent was of that overwhelming character that would justify the court in determining that the absent testimony was not probably true, and thus taking away the testimony bearing on this fact from the consideration of the jury.

Appellant, in motion for new trial, attempts to question the action of the court in regard to a severance between him and his codefendant. If this matter had been raised by a timely objection, and the point had been reserved by a proper bill of exceptions, we do not believe appellant could have been forced to trial under the circumstances; that is, the court should have had the case against appellant's codefendant determined either by trial or final disposition of the case before he forced appellant to trial. Manor v. State (Tex. Cr. App.) 77 S. W. 786, 8 Tex. Ct. Rep. 867; Wolf v. State (Tex. Cr. App.) 79 S. W. 520, 9 Tex. Ct. Rep. 946.

The most serious question is the action of the court refusing appellant's special requested instructions bearing on the question of the resistance the prosecutrix was required to put forth, to aid them in determining whether or not she consented. On this subject the court simply charged the jury, after defining "force and threats" in the terms of the statute, that if the jury believed beyond a reasonable doubt that defendant assaulted prosecutrix, and, by the use of force and threats, had carnal knowledge of her without her consent, and that the force used was sufficient to overcome resistance of the said prosecutrix, taking into consideration the relative strength of the parties, and that the threats, if any, were such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties, etc., in such case they would find defendant guilty, etc. Appellant requested a number of special instructions, which were refused by the court, to have the jury pass on this question of consent in connection with resistance on the part of prosecutrix. For instance, in special charge No. 1 the following instruction was requested: "You are instructed that, if you find from the evidence that defendant had carnal knowledge of the woman Juana Mereles, then consent on her part to such carnal knowledge would be presumed until the state proves beyond any reasonable doubt that said prosecutrix used every means within her power to prevent such intercourse." And again, special charge No. 5 is as follows: "You are charged that something more must be shown than a mere want of consent on the part of Juana Mereles to the intercourse, if any, with defendant, but it must appear from the evidence beyond all reasonable doubt that the said Juana Mereles made and used every exertion and means within her power, under the circumstances, to prevent intercourse, if any, with defendant:...