Sawyer v. State (39 Tex. Crim. 557, 1898)

DAVIDS OH, Judge.

Appellant was convicted of rape, and his punishment assessed at death; hence this appeal.

The first bill of exceptions recites that, during the call of the special venire, it was ascertained that T. H. Williamson and J. M. Gillpen, whose names had been drawn upon said special venire, were absent. The court ordered that the impanelment of the jury proceed without waiting for the appearance and examination of said jurors, to which defendant excepted. The bill further recites “that the county attorney asked defendant if he desired attachments for said veniremen. Defendant did not request attachments, but said they waived no rights. It was then that the county attorney requested attachments for said veniremen.” Before the venire had been exhausted, Williamson appeared and claimed his exemption by reason of being over age, and was excused. The special venire was exhausted, and talesmen summoned. Pending the examination of the talesmen, Gillpen appeared, and claimed exemption by reason of his over-age, and was also excused. The bill of exceptions states no reason or objection to this action of the court. Ho error was committed by the court in this regard, and it is not shown or claimed that appellant suffered any injury thereby. See Hudson v. State, 28 Texas Crim. App., 323; Habel v. State, 28 Texas Crim. App., 588.

The second bill of exceptions discloses that three jurors, McDuffy, Jenkins, and Graves, stated upon their voir dire examination that they had formed an opinion as to the guilt or innocence of the defendant, and, if taken as jurors, they would go into the jury box with this opinion in their minds, and that it would take evidence to remove it. Whereupon the court asked each of said veniremen if that opinion was a fixed opinion ; and they answered that it was not fixed, and, in answer to further inquiry, stated that said opinion would not influence them in arriving at their verdict, and that they could give defendant a fair and impartial trial. Whereupon the court held they were qualified. Appellant excepted to the ruling of the court, and peremptorily challenged each of said jurors. So it would seem that these jurors did not sit in the case. Nor is it shown anywhere in the record that a juror obnoxious to appellant was impaneled. It will be observed that the means by which the jurors arrived at a conclusion or formed an opinion is not shown; only conclusions were stated. Doubtless, if the bill had stated the answers of the jurors, it would have been shown that the opinion was formed from mere idle rumors or hearsay. At least, the bill fails to show the fact or information upon which the jurors may have based an opinion, or the reasons why the court held them qualified. The burden is upon the objecting party to show the error of the court; and, unless this has been done, it is a legal presumption that the court acted properly. See Aud v. State, 36 Texas Crim. Rep., 76; Post v. State, 10 Texas Crim. App., 579. It is further stated in the bill that this opinion was not fixed; that is, established. Before the juror is incompetent, this must be ascertained. If it is a mere loose opinion, formed from idle rumors or newspaper accounts or matters of that sort, and is not established or fixed as to the guilt or innocence of the accused, the juror would not be incompetent. The statute requires that there must be established in the mind of the juror such a conclusion as would likely influence him in finding the verdict, before he would be incompetent. So, in this regard the court committed no error. See Suit v. State, 30 Texas Crim. App., 319; Adams v. State, 35 Texas Crim. Rep., 285; Trotter v. State, 37 Texas Crim. Rep., 468. And, in addition, the jurors did not sit in the case; and, in so far as they are concerned, there was no question as to the fairness or impartiality of the jury. It was not contended that, because these jurors may have had an opinion, therefore the jurors who tried this case. did.

A bill of exceptions was reserved to the action of the court holding M. A. Bairv disqualified as a juror, on the ground that he had conscientious scruples in regard to the infliction of the death penalty in capital cases. The bill states the circumstances as follows: “The juror was asked by the county attorney ‘if he had any conscientious scruples in regard to the infliction of death as a punishment for crime/ The juror " answered that he had, except in extreme cases of murder in the first degree. The county attorney explained that this was a case of rape, and stated to said juror that he was to be the judge as to whether or not this is an extreme case: The juror stated he did not know whether or not this is an extreme case. On being asked by the county attorney if he had conscientious scruples as in a case of this kind, the juror answered he did not know whether he had or not,—could not make up his mind on that. The county attorney stated to the court that he thought the juror had disqualified. ■ Whereupon the court excused said juror, to which defendant excepted.” If the juror has conscientious scruples in regard to the infliction of the death penalty, the State has the right to challenge him for cause in a case where a capital crime is under investigation. If this were not true, the State would be compelled to take jurors in capital cases who had conscientious scruples in regard to inflicting the death penalty, unless the defendant saw proper to exercise his challenge for such cause. This is not the intention or meaning of the law. The rights of the parties are largely the same with reference to challenges for cause. If the defendant alone had the right to challenge on this ground, then this construction of the law would render inoperative the punishment of death for crime in Texas. It would be a rare instance in which the defendant would excuse a man who had conscientious scruples in regard to the infliction of the death penalty, when he was on trial for a capital offense. It is the duty of the State to furnish a juror qualified to sit in the trial of the case. If the juror himself on his voir dire leaves his qualification in doubt, the court can not be certain that he is a qualified juror; and in such case, when the challenge is made by either party (when both have the equal right to challenge), it may be the duty of the court to excuse the juror. Especially is this the case when there is no request by either party to further examine the juror as to his qualifications. But in this case the juror himself stated that he had conscientious scruples in regard to the infliction of the death penalty, except in extreme cases of murder in the first degree. His attention was called to the fact that this was a case of rape, not of murder; and he was then asked if in such a case he had any conscientious scruples. He replied that he did not know whether he had or not. In such case it was impossible for the court to know that the juror was qualified, and, on challenge being made at this stage, he did not err in allowing the challenge.

It is contended that the court erred in overruling the motion for a postponement or continuance of the cause. As no bill of exceptions was reserved, this action of the court can not be revised.

There is nothing in appellant’s motion to quash the indictment. It is in accord with the well approved forms in such cases.

The fifth ground of the motion for a new trial alleges that, when the assistant county attorney had closed the opening argument for the State, the audience in the gallery applauded, which appellant avers can be considered only as an expression of an indorsement of the views and suggestions advanced by said assistant county attorney “in crying for the defendant’s blood,” and thus giving to the jury an indication as to the feeling and excitement on the part of the audience against the defend-, ant. This is presented simply as a ground of the motion for a new trial, and in no way verified or shown to be true. Ho bill of exceptions was reserved, and it is not shown by affidavit or otherwise that there was any applause or excitement manifested by the audience. As this matter is presented, we can not consider it.

This disposes of the questions raised by appellant, except the last, which is that the verdict of the jury is not supported by the evidence. The issues made by the defendant were—First, if the prosecutrix was raped, that the State’s proof failed to identify him as the guilty perpetrator; second, conceding that defendant was sufficiently identified, then the State’s proof failed to establish beyond a reasonable doubt that she did not consent to the act of carnal intercourse,—in other words, that the force proved was not sufficient.

As to the first proposition, the evidence of the prosecutrix (if she is to be believed), in connection with the surrounding circumstances, settles beyond controversy the identity of the appellant as being the person who came to her room on the night in question. Appellant denied this, and testified to an alibi; but her evidence on the question of identity was positive, and it was the province of the jury to credit her, and discredit him. It is urged on the part of appellant that conceding as true the circumstances attending the alleged rape, as shown by the evidence of the prosecutrix, it is not established beyond a reasonable doubt that she did not consent to the act of copulation. In this connection it is insisted that the circumstances narrated by the prosecutrix show that, at the time of the alleged rape, she was in a room adjoining a room occupied by King and his wife, and that the least outcry on her part would have brought them to her assistance; that her child 8 years old was sleeping by her side, and that a slight disturbance would have awakened the child;' that consequently there must have been no resistance or scuffie on the bed that would indicate any degree of resistance. Moreover, it is urged that, from her own testimonjr, she must have consented to the act, as she narrates a conversation had with the defendant, and acts and conduct on her part inconsistent with the fact that she offered any resistance; and, in addition to this, that after the outrage, which occurred about 3 o’clock at night, she remained in her room the remainder of the night, making no outcry or disclosure of the offense until the next morning, when it was reasonably within her power to have informed others of the offense long before that time.

The facts as stated by the prosecutrix show that she slept in the room in the rear of the sample room, which was connected with her room by a door, and adjoining the room of the prosecutrix was another room, in which King and his wife usually slept; that she retired to her room about 11 o’clock; that her bed was situated near the back of the room, next to the wall; that her boy, 8 years old, slept in front, and she slept behind, next to the wall. About 3 o’clock she was aroused from her slumber by some one standing over her. She says.: c