Smith v. State

• Decision Date: 24 January 1940
• Docket Number: No. 20768.,20768.
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W.2d 842

SMITH v. STATE.

No. 20768.

Court of Criminal Appeals of Texas.

January 24, 1940.

Rehearing Denied February 21, 1940.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Harris County; Kenneth McCalla, Acting Judge.

Edgar Smith was convicted of rape, and he appeals.

Affirmed.

Sam W. Davis and Harry W. Freeman, both of Houston, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is rape. The punishment assessed is confinement in the state penitentiary for life.

The evidence offered by the state shows a case of rape by force. Appellant made a confession to the officers in due form, which confession if true, showed appellant to be guilty of the offense. On the trial, appellant took the witness stand and repudiated the confession. He claimed that the act of intercourse was with the consent of prosecutrix. The only issue raised by his testimony was whether or not she consented to the act, and this the jury decided adversely to his contention.

Appellant complains of the action of the court in overruling his motion to quash the indictment on the ground that the jury commissioners selected by the district judge to draw a grand jury for the August Term (at which term appellant was tried) had intentionally and arbitrarily excluded all persons of African descent from serving thereon. He alleged that he was a member of the negro race and that the practice of excluding negroes from grand and petit juries had been resorted to and systematically engaged in by the jury commissioners for a number of years preceding the time of the return of the indictment on which the prosecution was based. That these acts were in contravention of 14th Amendment to the Constitution of the United States, U.S.C.A., and in violation of Art. 1 of the Constitution of the State of Texas, etc., Vernon's Ann. St.

This motion was contested by the state and the Court heard evidence thereon. We do not deem it necessary to set out the evidence at length, but it is our opinion that the same wholly fails to show an intentional and arbitrary refusal to select negroes for grand jury service on the panel that returned the indictment against the appellant. All of the grand jury commissioners stated there was no express and intentional disregard for members of the negro race. Appellant is then relegated to contending that the discrimination is shown by the long continued and uninterrupted failure to summon a member of the negro race for grand jury service as showing discrimination as a matter of law. The evidence in this respect shows that on a number of previous occasions, the jury commissioners had selected negroes as prospective grand jurors. It is shown that in 1936 a negro served on the grand jury, and others had been repeatedly drawn for the grand jury panel—both prior and subsequent thereto. We think the evidence presented was such that the court was justified in reaching the conclusion that race discrimination was not intentionally and deliberately practiced by the jury commissioners. The case of Johnson v. State, 136 Tex.Cr.R. 305, 124 S.W.2d 1001 and authorities there cited are not in point, since the evidence in this case is conflicting. Appellant admits in his able brief that none of the cases cited by him are exact authorities, but insists that the only distinction is one of form—that in those cases it clearly appeared that there was discrimination, while in the case at bar discrimination is covered by a veneer which seems to be a scheme to avoid those decisions. A sufficient answer to any such contention is that the evidence does not show an arbitrary discrimination and we would not be justified in ferreting out such schemes when the evidence was sharply conflicting as to the existence of discrimination at all. This is rather a serious charge against the officers charged with the administration of the law. They are not only presumed to fairly and impartially administer the same, but under their oath are bound to do so; and in the absence of clear and convincing proof to the contrary, the presumption obtains that they did so. See Lugo v. State, 136 Tex.Cr.R. 226, 124 S.W.2d 344, Hamilton v. State, Tex.Cr.App., 135 S.W.2d 476, not yet reported [in State Report]. Washington v. State, 51 Tex.Cr.R. 542, 103 S.W. 879.

By bill of exception number two, appellant complains because the court declined to grant appellant's request to declare a mistrial after prosecutrix was recalled by the state and asked if the various acts of familiarity by her with appellant (as testified to by him) were true; that she emphatically denied them and called upon God to bear witness to the truth of her statement of the case and then fainted. That the behavior of prosecutrix in fainting made it impossible for him to continue his cross-examination of her without prejudicing the jury against him. The court states in his qualification of the bill that he does not certify that anything happened in connection with this witness' conduct or behavior which would prejudice appellant's cause in the eyes of the jury or that prosecutrix swooned and passed out, etc. He also states that this witness, after the occurrence in question was in attendance upon the court and was capable (as far as the court knew) to continue testifying. The bill, with the court's qualification thereto, was accepted by appellant and he is bound thereby. As thus qualified it fails to reflect reversible error, since such qualification would indicate that all that really happened was that the witness cried out for God to bear witness to the truth of her statements, and fainted. The court instructed the jury to disregard such conduct, and any statements not made by her in response to questions. It also appears that the jury was immediately retired. It is not alleged that such conduct on her part was intentional. To the contrary it is inferable that it was the result of long and protracted questioning of a white woman who had been assaulted by a negro. Under the circumstances, we do not think this matter reflects reversible error. See Long v. State, 59 Tex.Cr.R. 103, 127 S.W. 551, Ann.Cas.1912A, 1244; Burge v. State, 73 Tex.Cr.R. 505, 167 S.W. 63.

There are a number of special requested charges which were submitted by appellant to the trial court. It appears, however, that the appellant did not except to the refusal of the trial court to give these charges. Consequently, we are not authorized to consider them. It has been repeatedly held that it must be made to appear affirmatively that exception was reserved to the refusal of special charges before they were properly before us for review. See Cunningham v. State, 97 Tex. Cr.R. 624, 262 S.W. 491; Craven v. State, 93 Tex.Cr. 328, 329, 247 S.W. 515; Brooks v. State, 93 Tex.Cr.R. 206, 247 S.W. 517; Linder v. State, 94 Tex.Cr.R. 316, 250 S. W. 703, 4 Tex.Juris, p. 99 and the authorities there collated.

All other matters complained of by appellant have been considered by us and are deemed to be without merit.

The judgment of the trial court is affirmed.

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 Appellant's Motion for Rehearing.

CHRISTIAN, Judge.

Appellant reiterates his contention that the jury commission intentionally and arbitrarily excluded all persons of African descent in selecting the grand jury. Looking to the testimony heard upon the motion to quash the indictment, it is observed that we were in error in our statement in the original opinion that all the jury commissioners testified that there was no intentional exclusion of members of the negro race from the grand jury. Only two of the commissioners testified upon the hearing. Mr. Elliott, one of the commissioners, testified that he did not recall whether any negroes were drawn by the commission. He said that the names of some negroes were mentioned during the time the selection was being made. Further, he testified that he did not suggest a negro because he did not know the name of any negro at the time living in Harris County who possessed the qualifications of a grand juror. On his cross-examination he said: "I did not intentionally, arbitrarily and systematically discriminate against any negro being selected on that grand jury." Mr. Davis, the other member of the jury commission who testified upon the hearing, said that in selecting the grand jury he felt that it was the duty of the commission "to be fair to all classes in the county." Further, he testified that he suggested the name of no negro because he was not personally acquainted with any member of the negro race. Upon cross-examination he said: "The other two grand-jury commissioners and I did not intentionally, arbitrarily and systematically discriminate against putting a negro on the grand jury panel because of his race or color; that is, I did not, and nothing was said by the other two to that effect." It appears from the agreement entered into between the district attorney and counsel for appellant that in 1930 there were 72,603 negroes in Harris County, including men, women and children. Furthermore, it appears that in 1937 between 7,000 and 8,000 negroes paid their poll taxes. Again, it was shown that a large number of negroes possessed the qualifications of grand jurors. W. K. Richardson, a witness for the state, testified that four grand juries were selected each year. He said: "During the seven years I have been associated with the grand jury I would say that five or six negroes have served on grand juries; that is just a guess. I think one of those negroes served two different times, not in succession." He testified that there was no negro on the grand jury that indicted appellant. At this juncture we quote from his testimony, as follows: "I have been present on practically all occasions when Judge King and Judge Boyd have...