Wragg v. State

• Decision Date: 31 January 1912
• Citation: 145 S.W. 342
• Parties: WRAGG v. STATE.
• Court: Texas Court of Criminal Appeals

145 S.W. 342

WRAGG v. STATE.

Court of Criminal Appeals of Texas.

January 31, 1912.

Rehearing Denied March 27, 1912.

Appeal from District Court, Shackelford County; Thomas L. Blanton, Judge.

Sam Wragg was convicted of rape, and he appeals. Affirmed.

W. P. Sebastian and A. A. Clarke, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of the offense of rape, and his punishment assessed at five years confinement in the state penitentiary, from which judgment he prosecutes this appeal.

1. Appellant filed a motion for a continuance on account of the absence of a witness by whom he states he expects to prove that he, the said witness, had had sexual intercourse on several occasions with the prosecuting witness with her consent. This would be no defense; for, if it would be true that the witness would so testify, it would not authorize appellant to commit the offense of rape on her, if he did do so. The testimony would only be admissible to affect the credibility of the prosecuting witness, and to impeach her, and a continuance will not be granted on account of the absence of a witness whose testimony would only go to the credibility of a state witness. Patton v. State, 58 Tex. Cr. R. 231, 125 S. W. 24; Gee v. State, 57 Tex. Cr. R. 151, 122 S. W. 23; and authorities cited in these two cases.

2. Appellant complains that, after a juror had testified that he had served as juror in a criminal assault case, he was not permitted to ask the juror what verdict was rendered in that case. Proper questions to test the bias in favor of or prejudice against a defendant, and in some instances as to prejudice in certain character of offenses, should be permitted, but the question to be proper should be directed to that issue. Inasmuch as the verdict rendered in a particular case, in another county, having no connection with this case, would have no such tendency, the court did not err in refusing to permit the question to be propounded. Cavitt v. State, 15 Tex. App. 199.

3. Inasmuch as the jury were not questioned on their voir dire whether or not they had conscientious scruples in regard to the punishment of death for crime, appellant complains that the court in his charge erred in instructing the jury that, if they found the defendant guilty, they would assess his punishment at death, or confinement in the penitentiary for life, or any length of time not less than five years. This is the punishment provided by article 639 of the Penal Code, and the court could not otherwise instruct the jury. There is no bill of exception in the record showing that appellant objected at the time of the examination of the jurors to the failure to ask this question, if it was not asked, consequently this question is not presented for review; and it is not error for the court to correctly state the punishment fixed for any offense.

4. In a bill of exceptions appellant complains that the court would not permit his counsel to argue his motion for a new trial, nor present authorities. The court in his approval of the bill states that, after counsel for appellant had used some 30 or 40 minutes in presenting the motion, the court stated to him he had read the motion, and did not think it presented error, when counsel for appellant stated he desired to reserve a bill of exception to the action of the court in refusing to hear him, when the court states he told counsel he would give him "three hours or as much time as he might desire." This was declined by counsel. Counsel is bound by the recitals of this bill as he accepted and filed it. Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561.

5. Appellant complains of the action of the court in asking the prosecuting witness certain questions, some of which were: "Miss Bell, whatever the defendant did, if he did anything, did he do it with or without your consent? A. Yes, sir; he done it without my consent. Q. Without your consent? A. Yes, sir. Q. At the time he did what he did, if he did anything, and when Roy Curry stated to you, unless you permitted the defendant Wragg to have intercourse with you, that he, Curry, would not marry you, did you or did you not then agree that Sam Wragg might have intercourse with you? A. No, sir. Q. You did not? A. No, sir." The appellant objected to the court "examining the witness and making out the salient features of the charge, when the county attorney had failed to do so." The court in approving the bill states: "The prosecutrix was 16 years old, and did not appear to have more experience concerning affairs of life, or familiarity with expressions used, than is ordinary with a girl of her age; in fact, she still wore short dresses, and looked even younger than her age. The state had wholly failed to bring out the evidence mentioned, and the court deemed it necessary in the interest of justice, not only to the state, but to the defendant as well, to ask such questions, none of which were leading. If, when told by Curry that he would not marry her unless she submitted to the defendant, she had then freely submitted, the defendant then could not be guilty of rape, and likewise, if he had failed to penetrate her, he would not have been guilty of rape; hence the questions were asked as much in his behalf as in behalf of the state." This question is discussed at length in the case of Harrell v. State, 39 Tex. Cr. R. 204, 45 S. W. 581, and it is there held that the trial judge should not attempt to conduct the examination of witnesses, but, if he did do so, if the questions propounded and the conduct of the judge were not such as to indicate to the jury his opinion of the merits of the case, no such error would be presented as would or should cause a reversal of a case.

6. The prosecuting witness had testified, without objection, that she had left home and gone to a place to meet Roy Curry, in accordance with an appointment made with him, and, after she had had sexual intercourse with Curry, that appellant had come from behind a tree and grabbed her and threw her down on the ground, and, when she had objected to appellant having intercourse with her, that Curry had caught her and held her, and told her that if she did not submit to appellant (who was his cousin) he would not marry her as he had promised to do, when defendant objected to the state proving the relation existing between prosecuting witness and Roy Curry. The witness testified over objection of defendant that Curry and she were engaged to be married; the grounds of objection being the proof would show an independent crime committed by a third person with which defendant had nothing to do. The court in approving the bill states: "It was the theory of the state that the prosecutrix had been seduced by one Roy Curry, who continued to have sexual intercourse under promise of marriage with her until she became pregnant, and, after getting her in that condition, he then connived in forcing her to submit to the defendant, and that at the time the said Roy Curry made arrangements with prosecutrix to meet him on the particular Wednesday night in question for the purpose of having sexual intercourse with him, that he then arranged with the defendant to be present in hiding, and then, after having intercourse with her himself, the said Roy Curry then assisted the...