Willis v. State

• Decision Date: 13 March 1935
• Docket Number: No. 17331.,17331.
• Citation: 81 S.W.2d 693
• Parties: WILLIS v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W.2d 693

WILLIS v. STATE.

No. 17331.

Court of Criminal Appeals of Texas.

March 13, 1935.

Rehearing Denied May 1, 1935.

Appeal from District Court, Smith County; Nat W. Brooks, Judge.

John B. Willis was convicted of rape, and he appeals.

Affirmed.

Ralph B. Shank, F. G. Swanson, and C. C. Morris, all of Tyler, for appellant.

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

LATTIMORE, Judge.

Conviction for rape; punishment, death.

There are six bills of exception, three presenting objections to the refusal to change the venue, which will be conjointly discussed later, the same question being involved in each. Bill of exceptions 4 complains of the overruling of appellant's objection to the prosecutrix stating that she did not consent to the act of intercourse which forms the basis of the charge against appellant. The ground of objection was that such statement was but a conclusion and opinion of the witness. There is nothing in the objection. Bill No. 5 shows objection to said witness testifying as to how long appellant was engaged in such sexual act, the objection being for the same reason above stated, and our conclusion in regard to it is also the same. Bill No. 6 was reserved to the overruling of the motion for new trial, which recited, as grounds for same, the identical matters covered by the five bills of exception just mentioned.

Appellant moved for a change of venue, making affidavit thereto and supporting same by the affidavits of two compurgators, as is the requirement of article 562, C. C. P.; the only ground laid being that there existed against him in Smith county, Tex., so great a prejudice as that he could not obtain in said county a fair and impartial trial. In its traverse of said motion the state questioned the means of knowledge of the makers of appellant's supporting affidavit, and denied the existence of the prejudice.

Upon the issue appellant introduced excerpts from newspapers of Smith and Dallas counties, also the testimony of the two compurgators and three other witnesses who lived in or near Tyler. As we understand this record, none of these witnesses claimed knowledge of the attitude or sentiment generally toward this appellant of the people of Smith county, which is shown by testimony to have a population of about 57,000 people. One of said witnesses merely stated that the circulation in Smith county of the Dallas papers referred to was about 500 copies daily. Of the other four, two said they doubted if appellant could get a fair trial in said county, and the other two said they did not believe he could get such character of trial, though what they had heard seems to have been directed at any man who would commit a crime such as that imputed to appellant and not personally to this appellant.

For the state some 13 witnesses from different parts of Smith county, of different avocations and evincing knowledge of the sentiment of the people of their various communities, testified that in their judgment appellant could obtain in said county a fair and impartial trial. There is no evidence in this record that appellant made any effort to get other parties to testify in his behalf but without success. The articles from the papers referred to, all of which appear in this record, have been reviewed by us, as they doubtless were by the learned trial judge, and, with one or two not very extravagant exceptions, seem to present statements reasonably in consonance with the facts of the case as developed on this trial, and same were not so colored as to reasonably create feeling or resentment more than would arise in the breast of any citizen hearing such facts narrated.

That newspapers have a right to publish news is beyond question, and citizens who have merely read reasonably accurate descriptions of crimes in newspapers are not ipso facto to be barred from jury service upon juries before whom are tried cases involving such facts. The controlling issue in the selection of jurors who may have heard or read what purports to be the facts of any given case is the resultant effect upon the mind of the proposed juror. Not all men have beliefs or form definite or fixed conclusions as to cases, men, or issues merely from newspaper reading; and the ascertainment of the attitude of veniremen called to try a case is first by finding from them, when brought before the court, what they have read or heard, and what they think to be their ability to fairly try the issues un-influenced by what may have crossed their path. What they say, in connection with other facts brought to the attention of the court, will first be passed upon by the trial judge, whose judgment will be subject to review upon appeal, and will be upheld unless, in the opinion of the appellate court, same is so manifestly incorrect as to reflect an abuse of discretion to the probable injury of the accused.

Appellant renewed his motion for change of venue after the jurors had been selected, bringing forward by a complete transcription all that came before the court in the selection of said jurors as additional grounds for the granting of his prayer. The venire drawn called for 200 men. The jury was selected from the first 100 men summoned, and no one of them was taken over objection or challenge by the accused; twenty of the said 100 men were sick or absent; one was a brother of a witness; the name of another was not correctly on the list; 13 had conscientious scruples as to the infliction of the penalty of death as punishment for crime; 15 were challenged by appellant; 10 by the state; and 23 had formed opinions more or less fixed which they were afraid would influence them, or were by the court deemed sufficient to be held grounds of challenge for cause.

Nothing is better settled than that in determining whether the trial court abused his discretion in refusing to change venue each case must be decided upon its own facts. No two cases are alike. Many holdings of this court are reviewed and cited in the able briefs of both counsel for appellant, who are to be highly commended for their earnest effort in a cause wherein they were appointed by the court and served without pay as faithful...