Press v. State, 30444

Decision Date04 March 1959
Docket NumberNo. 30444,30444
Citation168 Tex.Crim. 1,322 S.W.2d 525
PartiesStanley Norman PRESS, Appellant, v. STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Polk Shelton, Douglass D. Hearne, Austin, Cofer & Cofer, by John D. Cofer, Austin, for appellant.

Les Procter, Dist. Atty., David S. McAngus, Asst. Dist. Atty., Robert O. Smith, Asst. Dist. Atty., Austin, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is sodomy; the punishment, 13 years.

The prosecuting witness, a young single woman, who was 20 years of age on the date of the alleged offense testified that on such date around 3:30 P.M. while she was walking on the sidewalk on Congress Avenue in the City of Austin the appellant came up to her and asked if she knew him; that she replied that he looked familiar and appellant proceeded to walk along beside her; that while they were crossing Congress Avenue appellant asked where there was some good entertainment and requested her to show him where the 'Tower' was located; that she told him 'no,' that she had to go to church, whereupon he got her by the hand and took her to his automobile parked nearby; that she got in the automobile and after appellant told her he just wanted her to show him where the 'Tower' was nad that he would come right back, he backed the car out and drove down Congress Avenue; that after she had pointed the 'Tower' out to him the appellant, instead of driving back toward the Capitol, drove west out of the City on a highway and after passing through Oak Hill turned off of the highway and drove into a cemetery and stopped. In describing the events which thereafter transpired the prosecuting witness testified that after appellant stopped the car he first pulled her over to his side and kissed her; that she struggled to get out; that appellant then unzipped his pants and told her to take hold of his private parts; that she again struggled and tried to get out and appellant hit her across the face; that she was screaming and crying and appellant told her if she did not do what he wanted her to do, she would be in serious trouble and indicated he was going to try and rape her; that she again tried to get out of the car; that she was afraid appellant would rape or kill her and she did not want to become pregnant; that appellant then forced her to put her mouth on his private parts by holding her head down while he was counting to a hundred and until he reached a climax; that appellant then drove out of the cemetery and started toward Austin; that while driving on the highway appellant said he wanted her 'to go and do that again' and turned the automobile around and while making a U-turn she jumped out of the automobile and got into an automobile with a couple who were passing at the time.

The State called as witnesses Mr. and Mrs. Bobby Gene Anderson, the couple in the passing automobile, who corroborated the testimony of the prosecuting witness relative to her jumping from the appellant's automobile and described her as being hysterical, crying, scared and sobbing when she got into their automobile.

Appellant did not testify or offer any evidence in his behalf.

In submitting the case to the jury the court submitted the issue as to whether the prosecuting witness was an accopmlice and in connection therewith instructed the jury that unless they found and believed from the evidence beyond a reasonable doubt 'that the said (prosecuting witness) did not consent to the commission of the offense, if any, and that she did object to the commission of the offense, if any, and was caused to commit the offense, if any, against her will by force or threats' that she was an accomplice and in such an event they would acquit the appellant.

Appellant insists that the court erred in submitting the issue to the jury and in not holding that she was an accomplice as a matter of law and directing the jury to acquit him.

It is appellant's position that the prosecuting witness, by admitting her participation in the offense which she knew was wrong, became an accomplice from which she could not excuse herself by her own uncorroborated statement that she participated in the act because she was afraid and forced to do so by the appellant. Appellant cites certain cases, including Howard v. State, 92 Tex.Cr.R. 221, 242 S.W. 739, and Willman v. State, 92 Tex.Cr.R. 77, 242 S.W. 746, which support his contention that an accomplice cannot corroborate himself and extricate himself from such position by his own statements that he was forced to participate in the criminal act.

While the rule relied upon by appellant may be correct we think it has no application under the facts in the case at bar.

The only evidence touching on the question of whether the prosecuting witness was an accomplice is found in her testimony alone. Her testimony is undisputed that she did not agree or consent to participate in the act. There is no evidence that she participated with any lascivious intent, as did the appellant, but on the contrary her testimony shows that she had no such intent.

Under such facts the prosecuting witness was not shown to be an accomplice as a matter of law nor was an issue raised as to her being an accomplice. Mackey v. State, 160 Tex.Cr.R. 296, 269 S.W.2d 395; Botello v. State, 161 Tex.Cr.R. 207, 275 S.W.2d 814, and Franks v. State, Tex.Cr.App., 314 S.W.2d 586.

Appellant makes certain complaints to that portion of the court's charge which submitted to the jury the issue as to...

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6 cases
  • McCary v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 23, 1972
    ...court's attention. It is advanced for the first time on appeal. Hulin v. State, 438 S.W.2d 551 (Tex.Cr.App.1969); Press v. State, 168 Tex.Cr.R. 1, 322 S.W.2d 525 (1959). Next, appellant complains of the admission into evidence of Officer Hendry's testimony that he found a gun in a nightstan......
  • Dyche v. State, 44923
    • United States
    • Texas Court of Criminal Appeals
    • April 26, 1972
    ...to point out the grounds of objection and presents nothing for review. McLain v. State, Tex.Cr.App., 383 S.W.2d 407; Press v. State, 168 Tex.Cr.R. 1, 322 S.W.2d 525. No objection was made to other testimony of the witness Lee regarding Maxy Burns 'shooting morphine.' Thus, nothing is before......
  • Morgan v. State, 32514
    • United States
    • Texas Court of Criminal Appeals
    • January 18, 1961
    ...from the position of accomplices by their own testimony alone. A similar contention was overruled in the recent case of Press v. State, Tex.Cr.App., 322 S.W.2d 525. We do not agree that the testimony of either of these witnesses showed them to be connected with the murder of Mrs. Selby so a......
  • Mosley v. State, 33718
    • United States
    • Texas Court of Criminal Appeals
    • November 7, 1961
    ...the record and the authorities relied upon and have concluded that this case comes within the rule announced in Press v. State, Tex.Cr.App., 322 S.W.2d 525, and that the question of her being an accomplice was not raised by the evidence. Even if we were to assume that the prosecutrix willin......
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