Williams v. State
| Decision Date | 30 April 1958 |
| Docket Number | No. 29673,29673 |
| Citation | 79 S.Ct. 615,321 S.W.2d 72,167 Tex.Crim. 503 |
| Parties | Milton WILLIAMS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Woody & Showers, Houston, for appellant.
James D. Kershaw, Dist. Atty., Bastrop, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is rape; the punishment, death.
The evidence clearly established that appellant, a 27 year old Negro, barricaded a road which a 16 year old white girl traveled nightly in going to her home after leaving the cafe where she was employed as a waitress; assaulted her by striking her with a pistol; robbed and ravished her and threatened to kill her and her whole family if she told what he had done.
The evidence need not be set out in detail, for the rape was established by the testimony of the victim; the confession of appellant; the doctor's testimony as to the wounds inflicted on the girl with the pistol and the evidence of bleeding and ruptured hymen and presence of male sperm in her sexual parts; and the officers' testimony showing that they followed tracks from the scene to where appellant was found with a pistol in his hand; his bloody clothes on the floor, and to where he said he had left the shoes which made the peculiar tracks of which casts were made by the officers.
There are no formal or informal bills of exception in the record.
The offense was committed and the indictment was returned in Burleson County, and venue was changed on appellant's motion to Lee County where the case was tried, both Burleson and Lee being counties of the 21st Judicial District.
The indictment is attacked for the first time in this Court as being void in form wherein it reads:
'The Grand Jurors, for the County of Burleson, State aforesaid, duly organized as such at the May Term, A.D. 1957 of the District Court of the 21st Judicial District for said County, upon their oaths in said Court present that Milton Williams on or about the 30th day of August A.D. 1957, and anterior to the presentment of this Indictment, in the County of Burleson and State of Texas, in and upon--(name of victim), a female then and there under the age of eighteen years, did make an assault, and the said Milton Williams did then and there ravish and have carnal knowledge of the said--(name of victim), the said--(name of victim)--not being then and there the wife of the said Milton Williams; against the peace and dignity of the State.'
The indictment complies with the requisites set out in Art. 396, C.C.P. and is sufficient.
If appellant's complaint be that the record does not show that the grand jury returned the indictment in open court to the judge, or that the finding and return of the indictment is not shown to have been entered upon the minutes, these are questions which cannot be raised for the first time in this Court. Poe v. State, 98 Tex.Cr.R. 177, 266 S.W. 417; Rather v. State, 25 Tex.App. 623, 9 S.W. 69; Rowlett v. State 23 Tex.App. 191, 4 S.W. 582; Arnold v. State, 148 Tex.Cr.R. 310, 314, 186 S.W.2d 995, 158 A.L.R. 1356.
Motion was filed in Burleson County to quash and set aside the indictment because one C. E. Smith was a member of the Grand Jury which returned it and 'is a prosecutor against this defendant,' and a similar motion to quash was filed alleging racial discrimination by the court and the jury commissioners in the selection of the grand jury.
By separate orders each of the motions to quash the indictment was overruled, but no exception was reserved to the court's orders.
The evidence adduced in support of the motions to quash is before us and, because of the nature of the attack upon the indictment and of the extreme penalty being assessed, will be discussed.
C. E. Smith testified that he was member of the Grand Jury empaneled in May, and that on August 30, 1957, the sheriff deputized him and he assisted in the search for appellant and was present when he signed a confession in the County Attorney's office.
At one time in his testimony Mr. Smith stated that he signed the complaint, but it was shown that the complaint charging appellant with rape was not signed by Smith but by one Edward Ward, Smith's name did not appear as a witness to the confession offered in evidence.
Smith was not 'a prosecutor' upon the accusation against appellant and was not subject to challenge under Art. 362(2) Vernon's Ann.C.C.P.
It was further shown that C. E. Smith was a peace officer, having begun his duties as night watchman while he was a member of the grand jury.
That a member of the grand jury is a peace officer is not ground for quashing an indictment. Trinkle v. State, 60 Tex.Cr.R. 187, 131 S.W. 583; Edgar v. State, 59 Tex.Cr.R. 491, 129 S.W. 141; Trinkle v. State, 59 Tex.Cr.R. 257, 127 S.W. 1060.
Nor is a witness in the case disqualified from serving on the grand jury. Welch v. State, 66 Tex.Cr.R. 525, 147 S.W. 572.
The allegations of the motion to quash because of discrimination alleged that no Negro served as a member of the grand jury which returned the indictment. This was shown to be true, but it was further shown that a Negro was drawn on the panel but was excused at his request.
It was alleged that the population of Burleson County in 1940 was 18,334, of which 36.9 per cent were Negroes, and that in 1950 the population was 13,000 of which 32.3 per cent were Negroes. this was shown, but there was no proof as to the number of qualified grand jurors in the county or among the Negro citizens.
It was alleged that all of the jury commissions from 1943 to 1957, including the jury commission which selected the grand jury which indicted appellant, had consistently limited the number of Negroes selected to no more than two on each grand jury, as a result of which more often than not no Negroes at all served on the grand jury and never more than two had served on a grand jury, although a large number of Negroes were eligible.
No evidence was offered showing the number of Negroes that had been selected for grand jury service. The testimony of the district clerk, when asked concerning the number of grand jurors serving from 1945 to 1957 that were Negroes, was to the effect that as many as three had served in 1955, two in 1954 and at other terms, two in some instances, one in others and none in others.
There was evidence showing 465 Negroes paid poll tax in Burleson County in 1956, out of a total of 2406 voting poll taxes paid in the county, but the witnesses could not say how many were freeholders or householders, or how many...
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