Servina v. State (5 S.W.2d 510, 1928)

CHRISTIAN, J.

The offense is rape; the punishment, death.

The state’s testimony was, in substance, as follows: On the night of April 20th, while John M. Shaw and Prances Mohrmann were driving in an automobile in the city of San Antonio, appellant and one Rodriguez jumped on the running board of the car, placed pistols in their faces, and ordered them to continue moving. Upon reaching some brush, appellant and his companion tied Mr. Shaw’s hands back of him, placed him and Miss Mohrmann in the rear seat of the car, and Rodriguez drove the car 17 miles into the country, while appellant held a pistol on the parties. Upon reaching some brush, the assailants ordered the parties out of the car, and Rodriguez took Mr. Shaw into a field while appellant remained with Miss Mohr-mann. While Rodriguez was in the field with Mr. Shaw, appellant held a pistol on Miss Mohrmann, robbed her of her jewelry and raped her. Leaving Mr. Shaw in the field, Rodriguez returned and also ravished the young lady. After the injured female had been ravished, by Rodriguez, appellant repeated his assault. Completing the act, appellant held a pistol on her while Rodriguez further violated her. Appellant and his companion then placed the injured party in the automobile and carried her to a point .within 7¾0 miles of San Antonio, where she was tied and gagged and removed from the car. Appellant struck her, knocking her to the ground. Leaving her alone, Miss Mohrmann’s assailants drove away in the car. In order to reach San Antonio, Miss Mohrmann was compelled to walk 7¾0 miles. In addition to raping her, appellant and his companion took from the injured party five rings, a string of pearls, and a wrist watch.

Appellant testified that Rodriguez told him that he would have to aid him in assaulting the car; that, as Rodriguez had a gun, “he made me do it”; that Rodriguez tied Mr. Shaw and took him into the field while he, appellant, remained with Miss Mohrmann; that he, appellant, at no time ravished Miss Mohrmann, but that Rodriguez made an attack on her; that after Rodriguez had.mistreated her, he stated to appellant, “Now you got to use her”; that he demurred, and that Rodriguez pointed his gun at him and told him he had to do it dr he would kill him; that he did not have sexual intercourse with the injured party, but only made motions as if hfe were engaged in such act; that he only got a “little close” to her but did not get on top of her; that at.the time Rodriguez was about five or six steps from him and had a pistol in his hand; that he had gone with Rodriguez on the expedition in question under the orders of Rodriguez; that he went with him because he threatened to kill him; that he did not carry a pistol.

Appellant made a motion to quash the indictment on the ground that his name was incorrectly set forth, alleging that his name' was Esiquiel Serbin. This afforded no ground for quashing the indictment. It was suggested to appellant at the time the motion was presented that he might suggest his correct name. According to the qualification ap-

pended to tlie bill of exception, appellant failed and refused to suggest bis correct name. If be bad done so, tbe indictment might bave been corrected in accordance with tbe provisions of article 496, O. 0. P. (1925); Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405.

Bill of exception No. 1 complains of the action of tbe court in refusing to sustain tbe challenge for cause to the juror Davis. Tbe juror testified on bis voir dire examination that be had formed an opinion from reading newspapers, and mat it would require evidence to remove such opinion. He further stated that be would lay aside bis opinion and render a verdict according tovthe sworn testimony and tbe charge of tbe court. It is not shown by tbe bill that appellant bad exhausted bis challenges at tbe time. Neither is it shown that tbe juror served on tbe jury. It is stated in tbe bill that appellant was thereafter forced to exhaust bis challenges before the jury was impaneled, witb tbe result that he was required to take jurors whom be would not otherwise bave taken. In qualifying tbe bill, tbe court states that at tbe suggestion of tbe district attorney ap- ’ pellant was offered two additional challenges after be had exhausted bis peremptory challenges, and that appellant refused to accept tbe offer. Tbe bill fails to manifest error. •

Bill of exception No. 3 is in- tbe same attitude as tbe foregoing bill.

Appellant timely excepted to tbe court’s charge for its failure to embrace an instruction covering tbe provisions of article 38, P. O. (1925). Under tbe evidence' and in tbe light of tbe charge given, tbe overruling of said objection was not error.

Appellant lodged an exception to tbe court’s charge on tbe ground that tbe jury should bave been instructed that they were bound by “tbe inculpatory and exculpatory statements” contained in bis confession. Tbe state did not rely for a conviction upon appellant’s confession. It appears that tbe statements contained in said confession were used by tbe state, in cross-examining appellant, to rebut bis testimony to the effect that be bad not raped tbe injured party. Under such conditions it was not error to omit from tbe charge tbe instruction contended for by appellant. Marshall v. State, 104 Tex. Cr. R. 619, 286 S. W. 214.

Binding no error, tbe judgment is affirmed,

PER CURIAM. Tbe foregoing opinion of the Commission of Appeals has been examined by tbe Judges of tbe Court of Criminal Appeals and approved by tbe court.

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On Motion for Rehearing.

MORROW, P. J.

Appellant contends that tbe refusal to instruct tbe jury on the law of duress was error. Article 38 of tbe Penal Code 1925 reads as follows:

“A person forced by threats or actual violence to do an- act is not liable to punishment for the same. Such threats, however, must be — "

“1. Boss of life or personal injury.

“2. Such as are calculated to intimidate a person of ordinary firmness.

“3. Tlie act must be done when tbe person threatening is actually present.

“The violence must be such actual force as restrains the person from escaping, or such ill treatment as is calculated to render him incapable of resistance.”

Touching tbe subject of duress, Mr. Wharton, in bis work on Homicide, page 68, after stating that in order to amount to duress tbe act or threat must portend immediate injury in tbe event tbe party threatened refuses to aid in the criminal act, says:

“But, if after the danger passes, he continues to consent, advise, aid, abet, or assist in such act, he is as guilty as if such danger had never threatened him.”

Tbe principle stated is approved in Howard v. State, 92 Tex. Cr. R. 232, 242 S. W. 739; Welk v. State, 99 Tex. Cr. R. 239, 265 S. W. 914.

Erom tbe appellant’s testimony it appears that, upon tbe invitation of Rodriguez, tbe appellant accompanied him at night “to make money”; that they observed an automobile upon one of tbe streets of tbe city of San Antonio and Rodriguez proposed to assault tbe people that were in it. Appellant demurred and Rodriguez, being possessed of a pistol at tbe time, commanded tbe appellant to assist, threatening to kill him if be refused. Tbe parties in tbe car were assaulted by both tbe appellant and Rodriguez. Rodriguez tied Shaw, and tbe appellant remained alone at tbe car. After tying Shaw, Rodriguez made him and tbe girl get on tbe back seat. Rodriguez and tbe appellant rode on tbe front seat of tbe car, which was driven by Rodriguez, about 13 miles into tbe country. Rodriguez then took Shaw out of tbe car and took him to one side while tbe appellant remained at tbe car witb tbe girl. After taking Shaw away and tying him, Rodriguez came back to tbe car and raped tbe girl while tbe appellant was standing by. He then commanded tbe appellant to do likewise, threatening to kill him in case be refused to do so. According to his testimony, appellant only pretended to rape tbe girl. That be did in person ravish her tbe state’s evidence is direct and cogent. Tbe appellant admitted that be robbed tbe girl and testified that she was raped twice by Rodriguez, be taking her into tbe brush for tbe purpose.

On tbe face of tbe testimony, tbe acts of Rodriguez, as well as those of tbe appellant, are chargeable to him unless be was under duress. Under tbe indictment, be might bave been convicted for tbe rape of the prosecutrix committed by Rodriguez. See Dodd v. State, 83 Tex. Cr. R. 165, 201 S. W. 1014; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858; Williams v. State, 42 Tex. 392; Bell v. State, 1 Tex. App. 598, and other cases cited in Branch’s Ann. Tex. P. C. 344, § 676. Unless the appellant, at the time the girl was raped by Rodriguez, was in danger such as is contemplated in the statute, - he would not under the law be exculpated. In Wharton’s Criminal Law (Kerr’s 11th Ed.) § 383, it is said:

“But to be available as a defense, the fear must be well-founded, and immediate and actual danger of death or great bodily harm must be present, and the compulsion must be of such a character as to leave no opportunity to accused for escape or self-defense in equal combat.”

See, also, Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991; Arp v. State, 97 Ala. 5, 12 So. 301, 19 L. R. A. 357, 38 Am. St. Rep. 137; Baxter v. People, 3 Gilman (8 Ill.) 368; Leach v. State, 99 Tenn. 584, 42 S. W. 195; Rizzolo v. Com., 126 Pa. 54, 17 A. 520; Paris v. State, 35 Tex. Cr. R. 82, 31 S. W. 855.

The appellant was not entitled to have the jury instructed to acquit him if he committed the rape upon the prosecutrix under the duress of Rodriguez.

The motion for rehearing is overruled.