Shepherd v. State

Decision Date20 June 1928
Docket Number(No. 11704.)
Citation10 S.W.2d 730
PartiesSHEPHERD v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Rockwall County; Joel R. Bond, Judge.

Bob Shepherd was convicted of rape, and he appeals. Affirmed.

Carl G. Miller, of Rockwall, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

The offense is rape; penalty, five years in the penitentiary.

No sentence appears in the record. This constitutes a final judgment, and is essential to confer jurisdiction on this court. Article 767, C. C. P. 1925; Doyle v. State, 104 Tex. Cr. R. 582, 286 S. W. 214.

Being without jurisdiction, this appeal is ordered dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion to Reinstate Appeal.

LATTIMORE, J.

Appellant files a motion for rehearing, accompanied by a certified copy of the sentence, which, appearing regular, leads us to reinstate his appeal and to decide the case now upon its merits.

We are of opinion that a juror who refuses to answer whether certain business relations with the accused would or would not affect his verdict would be subject to challenge for cause. However, in the case before us there is no showing that, as a result of the refusal of the court to sustain the challenge for cause to such juror, any objectionable juror was forced upon appellant.

Complaint of the failure of the court to arraign the defendant, not being made until same was presented in motion for new trial, will be held by us to have been waived.

Appellant complained of the refusal of his applications for continuance. No process for the absent witnesses appears in the record, nor is there any showing of diligence to secure the presence of said witnesses.

The alleged injured female was referred to by all the witnesses as "she" or "her," and the case did not fail because there was no specific statement by any witness that said injured party was a female.

The prosecutrix in this case having testified to a number of acts of carnal intercourse with appellant, it is difficult for us to see how there could be any ground for contending that there was no proof of penetration.

The complaint directed at the indictment, because it failed to allege the rape was unlawful, is of no force. The indictment alleged that appellant ravished and had carnal knowledge of the prosecutrix without her consent, and that she was not then and there the wife of appellant. This sufficiently charged that the act was unlawful.

Appellant sought a new trial on the ground of misconduct of the jury. Affidavits pro and con were presented to the court, who found against appellant's contention. Many authorities might be cited, supporting the legal proposition that a conflict upon facts of this kind is primarily for decision of the trial judge, and, unless there appears an abuse of his discretion, this court will not review his action.

There is a bill complaining of testimony showing the exchange of notes between appellant and prosecutrix. Matters of inducement, and a showing of increasing intimacy between the parties prior to and leading up to the consummation of the act, would be plainly admissible.

Appellant introduced as a witness his father-in-law, and when the witness was asked, on cross-examination by the state, if he was not so related to appellant, a bill of exceptions was reserved to the action of the court in compelling the witness to answer that he was appellant's father-in-law. The testimony tended to show bias or interest and was admissible.

An effort was made on the part of appellant, in connection with his motion for new trial, to show that certain jurors were influenced in their verdict by the fact that appellant did not take the witness stand. The trial court correctly refused to permit such testimony. A juror should not be permitted to impeach his own verdict.

The evidence in this case amply supports the verdict. Upon the proposition that, if she would submit herself to him, he would get a divorce from his wife and marry her, appellant seems to have induced prosecutrix, a girl 15 or 16 years of age, to submit to a number of acts of intercourse with him. The jury gave him the lowest penalty.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Our opinion is questioned on the point made by appellant that he was charged with a capital felony and was never arraigned. It may be seriously questioned whether the bill of exceptions presenting this matter amounts to a certificate by the trial court that no arraignment was in fact had, or whether it only certifies that appellant raised such question in his motion for new trial....

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7 cases
  • State v. McCall
    • United States
    • United States State Supreme Court of Iowa
    • 7 Abril 1954
    ...includes penetration. State v. Frazier, 54 Kan. 719, 39 P. 819; Hunley v. Commonwealth, 217 Ky. 675, 290 S.W. 511, 514; Shepherd v. State 111 Tex.Cr.R. 4, 10 S.W.2d 730; State v. Haston, 64 Ariz. 72, 166 P.2d 141, 143, 144; State v. Diamond, 50 Nev. 433, 264 P. 697. The testimony above note......
  • Svehla v. State
    • United States
    • Supreme Court of Nebraska
    • 22 Mayo 1959
    ...includes penetration. State v. Frazier, 54 Kan. 719, 39 P. 819; Hunley v. Commonwealth, 217 Ky. 675, 290 S.W. 511, 514; Shepherd v. State, 111 Tex.Cr.R. 4, 10 S.W.2d 730; State v. Haston, 64 Ariz. 72, 166 P.2d 141, 143, 144; State v. Diamond, 50 Nev. 433, 264 P. 697. The testimony above not......
  • West v. State, 28653
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 13 Febrero 1957
    ...court; and, in the absence of an abuse of discretion, this Court would not be justified in reversing the judgment. Shepherd v. State, 111 Tex.Cr.R. 4, 10 S.W.2d 730; Kilpatrick v. State, 155 Tex.Cr.R. 609, 237 S.W.2d 996; and Berry v. State, 159 Tex.Cr.R. 492, 265 S.W.2d 86. Under the confl......
  • Nicholson v. State, 22953.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 8 Noviembre 1944
    ...the application on the ground of a want of proper diligence. See May v. State, 129 Tex.Cr.R. 2, 83 S.W.2d 338; Shepherd v. State, 111 Tex.Cr.R. 4, 10 S.W.2d 730 (on rehearing); Bentley v. State, Tex.Cr.App., 178 S. W.2d 521; Holmes v. State, 136 Tex.Cr.R. 26, 120 S.W.2d 595, 123 S.W.2d 343;......
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