Stokes v. State, 29120

• Decision Date: 26 June 1957
• Docket Number: No. 29120,29120
• Citation: 165 Tex.Crim. 269,305 S.W.2d 779
• Parties: Ferris Leamon STOKES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 779

305 S.W.2d 779

165 Tex.Crim. 269

Ferris Leamon STOKES, Appellant, v. The STATE of Texas, Appellee.

No. 29120.

Court of Criminal Appeals of Texas.

June 26, 1957.

[165 TEXCRIM 269] John P. Spiller, Houston, for appellant.

Dan Walton, Dist. Atty., Thomas D. White and Benjamin Woodall, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for statutory rape; the punishment, confinement in the penitentiary for 20 years.

The indictment charges the rape of the prosecutrix, a female under the age of 15 years, on or about the 7th day of June, 1956.

The state's testimony shows that the prosecutrix was 13 years of age at the time of trial; appellant was her step-father, her mother having married appellant in the year 1950, since which time they had resided in various places in Texas and other states.

Prosecutrix testified that appellant had numerous acts of intercourse with her beginning about three years prior to the trial and that the last act occurred in the first part of June, 1956, in their home in the City of Houston. She testified that on the occasion of the first act of intercourse appellant told her never to tell any [165 TEXCRIM 270] one; that she was afraid of him and that the first time she did tell any one was on July 19, 1956, when she told her mother on an occasion when she was explaining to her mother why she did not want to go with appellant on a trip to Mexico.

The testimony further shows that the prosecutrix was immediately taken to Dr. James Albert Brown for an examination who testified that his examination of the prosecutrix revealed that the hymen had been torn, that the vagina had the appearance of that of a married woman and that such condition could have been caused by repeated acts of intercourse with an adult male.

Mrs. June O'Quinn, the mother of prosecutrix, testified that after she had filed charges against appellant, separated from and divorced him and after the case had been set for trial, appellant called by telephone and offered her $500 if she would leave the state and take the prosecutrix with her so she could not testify against him and that later in another conversation admitted his guilt to her.

As a witness in his own behalf, appellant denied that he had ever had any sexual or improper relations with the prosecutrix. He further testified that it was his former wife rather than he who suggested that he pay her $500 to take the prosecutrix out of the state.

Appellant called witnesses who corroborated his testimony that his former wife had stated she wanted a divorce from him and who also testified that his general reputation for being a peaceful and law abiding citizen was good.

The jury chose to accept the testimony of the state's witnesses and reject that of the appellant and we find the evidence sufficient to sustain their verdict.

Appellant first complains of the court's action in overruling his motion to quash the venire and to declare a mistrial.

The motion, presented to the court on the second day of the trial after nine jurors had been selected, alleged as grounds therefor that on the previous day June O'Quinn, mother of the prosecutrix, had circulated among the prospective jurors and, in talking to them and to others in their presence, had given them her version of the case. The motion was supported by the [165 TEXCRIM 271] affidavits of Marie Terry and Bobby J. Terry, who the record reflects were appellant's daughter and son-in-law.

After the state had controverted the motion by filing a written answer thereto supported by the affidavit of June O'Quinn denying appellant's allegations, the court proceeded to hear evidence thereon.

Upon the hearing the...