Williams v. State

• Decision Date: 25 October 1950
• Docket Number: No. 24847,24847
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 166

235 S.W.2d 166

155 Tex.Crim. 370

WILLIAMS v. STATE.

No. 24847.

Court of Criminal Appeals of Texas.

Oct. 25, 1950.

Rehearing Denied Jan. 10, 1951.

Kahn, Heidingsfelder & Daniel, by H. E. Kahn, Houston, for appellant.

A. C. Winborn, Crim. Dist. Atty., E. T. Branch, Asst. Crim. Dist. Atty., Houston, George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Commissioner.

Appellant was convicted of rape, and the jury assessed the death penalty.

The victim is shown to have been a ten year old girl, who was first accosted by appellant in a picture show at La Porte, Texas, about 7 P.M. She was followed from the show and enticed into the car appellant was driving by his promise to take her to her mother. He told her that her mother wanted her.

Driving in the opposite direction from the place where the child told him her mother was employed, he left the main road, and after driving for a time submitted the child to his perversion, defiled her mouth and twice ravished her.

The child's testimony is corroborated by a witness who saw appellant and the child enter the car, and others who identified appellant as the driver of the car in question--a Kaiser car with a Florida license plate in the rear and none in front and with the maker's emblem missing from the front.

During the drive, appellant struck a concrete culvert and a parked car at the deadend of a road, and bits of concrete taken from the car and a sample taken from the culvert were found by the experts to be identical. Blood was found in the car and upon a pair of appellant's trousers. Hair identical with that taken from the child's head was found in appellant's car.

Following the last assault upon her, which occurred in a ditch on the side of a road, the child kicked appellant and ran away, he repeating previous threats to kill her as she ran.

Mrs. DeCola, a resident of the section and to whose home the child finally made her way, took her in, ministered to her and called the officers. She testified in part: 'There was a knock on my front door and when I turned the front porch lights on and opened the front door I saw this little girl all full of blood and mud. Her face and hands were very muddy and you couldn't see her eyes. The dogs were right behind her, barking at her. I invited the little girl inside of my home. Her dress, both front and back, was full of blood and mud, and she was in a terrible condition. I washed her face and hands and made a pallet on the floor and laid the little girl down on it, and gave her a drink of water. I called the officers. The little girl laid there on the pallet, groaning, with severe pains in her stomach. She held her hands on her stomach and laid on her right side all the time she was there. As I stated, there was mud all over her face and hands, and her hair was stiff with mud, and when I washed the mud off of her face and hands I called the officers. When the officers arrived they lifted her and the pallet and took her home. I could see blood on the pallet after I laid her down on it.'

Dr. Mock, who examined the child that night prior to her being taken to the hospital, testified as to her terrible condition resulting from the assault.

Appellant testified denying any knowledge or connection with the crime. His testimony raised the issue of an alibi. He also said that he was highly intoxicated on that night, and offered evidence to that effect from others.

In his brief, appellant first complains of the trial court's action in connection with the overruling of his motion for new trial. The trial court's order contains findings and explanations of his rulings on the various matters alleged by appellant as a ground for such motion.

Appellant contends that in view of the provisions of Art. 758, C.C.P., it was improper for the court to do other than simply grant or overrule the motion.

If we understand appellant's position, he contends that by reason of the inclusion of such matters, some degree of prejudice upon the part of the trial judge is indicated, and therefore a close scrutiny of the judge's rulings are called for.

We do not agree that the findings and explanations found in the order overruling appellant's motion show prejudice upon the part of the able trial judge toward appellant.

But we agree that appellant is entitled to 'a close scrutiny' of the trial court's rulings, especially in view of the extreme penalty having been assessed.

Fourteen bills of exception are relied upon for reversal.

Bills Nos. 1 and 2 relate to the overruling of his motion for continuance based upon the absence of the witness John Fountain. It was averred in said motion that the witness, if present, would testify that he was with appellant from about 1 o'clock P.M. until about 6:30 P.M. on the day in question and that from his companionship with him, it would have been impossible for appellant to have committed the act charged.

The expected testimony does not appear to be in conflict with the State's evidence, which fixes the time of appellant's first contacting the child as 7 P.M.

Affidavit of the absent witness Fountain is attached to the bill as a part of the court's qualification, wherein the time of his separation from appellant is fixed at about 6:10 P.M. and not 6:30 P.M., as stated in the application.

Under such facts, there was no error in overruling the application for continuance. See Tuck v. State Tex.Cr.App., 231 S.W.2d 436.

Bill No. 3 relates to the overruling of appellant's exceptions to the court's charge. The qualification to this bill shows that the charge was amended to meet the objections made and that no further objections were filed, and no exceptions reserved.

Bill No. 4 relates to the refusal of appellant's requested charge in which he requested that the court give the following instruction on the defense of alibi: 'That if the defendant, Allen Conway Williams, was at Muecke's place in Seabrook or in the upstairs of another place testified about at or near Seabrook or another place on the La Porte-Seabrook road near Seabrook at the time that it is claimed that the offense was committed, then you will find the defendant not guilty and so say by your verdict and if upon this issue you entertain a reasonable doubt, you will give the benefit of such doubt to the defendant and say by your verdict, 'Not Guilty."

The qualification to this bill certifies that there was no testimony that appellant was in another place on the La Porte-Seabrook Road near Seabrook at the time of the offense and that appe...