Fite v. State

KRUEGER, Judge.

The offense is rape. The punishment assessed is confinement in the State penitentiary for a period of twenty-five years.

The State’s testimony, briefly stated, shows that about 4:30 p. m. of May 14, 1939, the prosecutrix, Isabell Garcia, accompanied by two other Mexican girls, started to walk to Mason Park located in the suburbs of the City of Houston. About the time that they arrived near the park they noticed *394that appellant was following them with a large knife in his hand. The girls became frightened and ran toward Seventy-fifth Street, calling for help. Appellant pursued them, overtook prosecutrix, knocked her down and commanded her to pull up her dress, remove her underwear and inserted his privates into her privates. That he threatened to cut her head off with the large knife which he held against her throat if she refused to comply with his command. The companions of the prosecutrix, being more fleet-footed than prosecutrix, ran away and reported the occurrence to a lady who came along the street in an automobile. This lady immediately telephoned to the police station. In a very short time two policeman appeared, took prosecutrix to the police station and later took her to a physician for examination, who testified that from his examination of her he concluded that she had engaged in an act of sexual intercourse about a day or two prior thereto because he found dead germs. However, there was some evidence that some men are sterile and emit dead germs while in the act of intercourse. Appellant did not testify. However, he proved an alibi by his wife and some friends.

From the foregoing brief statement of the salient and pertinent facts proven, it will be noted that an issue of fact was raised which the jury decided adversely to him. Therefore, the trial court did not err in declining to submit to the jury appellant’s requested peremptory instruction.

Appellant complains of the court’s action in overruling his second application for a continuance based on the absence of Dr. Mintz, who examined the prosecutrix within an hour or two after the commission of the offense. It appears from the record that the witness testified fully at the habeas corpus trial at the behest of appellant but had since then moved to Chicago, Illinois. However, appellant reproduced the testimony of the witness given at the habeas corpus proceeding. Consequently no reversible error is shown.

By Bill of Exception No. 1 appellant complains because the court would not permit him to prove by the court reporter that prosecutrix testified at the habeas corpus hearing that defendant told her to take them off (referring to her pants). He asked him if she had not stated that she took them off and the reason she took them off was that she would tear them if she did not take them off. Appellant asserts that he offered this testimony for the impeachment of the prosecutrix and also as original evidence tending to contradict the State’s *395theory of the case that the prosecutrix was raped. This bill is deficient in that it fails to state that the testimony of the prosecutrix was materially different from that which she gave at the habeas corpus hearing. A bill of exception, to be sufficient, must bring forward the surrounding facts so as to enable this court to determine from the contents of the bill that an error was committed. See Hicks v. State, 249 S. W. 844; Gonce v. State, 112 Tex. Cr. R. 191; Williamson v. State, 99 S. W. (2d) 606, and authorities there cited. This bill only sets out the testimony given by the witness on the habeas corpus hearing and asserts it was offered to impeach the witness without any showing that there was any discrepency in her testimony given on the trial and that given by her upon the habeas corpus hearing.

Bills of Exception Nos. 2 and 4 show that appellant offered to prove by one Romo that the general reputation of the prosecutrix for chastity was bad. The State objected thereto on the ground that it was irrelevant and immaterial. The objection was sustained and appellant excepted. He contends that this testimony was admissible; first, as an attack upon the corpus delicti; second, that if she had intercourse with any one on the occasion in question, it was with her consent; and third, as affecting her credibility as a witness.

The court qualified the bills and in his qualification states that appellant, on cross-examination, asked prosecutrix if she was not a common prostitute, to which she replied in the negative. Had the question of consent been raised, then the proffered testimony may have been admissible, but in our opinion, the issue was not raised. The testimony given by all of appellant’s witnesses related to an alibi. Just how this testimony was an attack upon the corpus delicti is not made clear to us. If it be conceded that she was a prostitute, this would not tend to show that she did not have sexual intercourse with a male person at the time and place in question, nor could appellant discredit her in that manner. If he sought to attack her credibility, he should have pursued the proper legal method. Had appellant admitted the act of sexual intercourse and raised the issue of consent, then the testimony would have been admissible as tending to sustain his theory, but such is not the case here. See Ross v. State, 60 Tex. Cr. R. 554 and 555.

Bill of Exception No. 3 is qualified by the court and as thus qualified it fails to reflect reversible error.

By Bill of Exception No. 5 appellant complains because the *396court, after the jury had retired to consider their verdict, declined to send to the jury room a photograph of one, William Alvin Adkins, which Dorothy Ewing, one of the State’s witnesses, said resembled the man whom she saw near the scene of the alleged offense but of which she was not sure. That at no time did she say that the man she saw near the scene of the commission of the offense was the person whose picture was exhibited to her for inspection. She was positive, however, that the defendant, whom she pointed out in the court room, was the man whom she saw near the scene of the offense at the time in question, as stated by the court in his qualification of the bill. The only exhibit which the jury carried with them, when they retired, was a map or drawing of the location of the place of the alleged offense, and the various streets leading to Mason Park. The court, however, told appellant if the jury should call for the photograph, he would send it to them. If it should be conceded that the court should have complied with appellant’s request and sent the photograph to the jury, we think the action of the court in this case was harmless error inasmuch as the photograph was offered in evidence, passed to the jury for inspection with the opportunity of observing appellant and comparing his appearance with that of the photograph. Just what useful purpose it might have served or what injury, if any, resulted to appellant from the court’s action is not made to appear from the record.

Bill of Exception No. 7 complains in substance of the ruling of the court relating to the same testimony as in bills Nos. 2 and 4. What we have said in disposing of these two bills applies with equal force to this bill. The bill is also qualified by the court and no exception taken to the qualification. Hence, appellant is bound thereby.

Appellant addressed a great number of objections to the court’s charge and requested thirteen special charges, which the court declined to give. His main objection to the court’s charge is that the court failed to instruct the jury on an assault with an intent to commit rape or an aggravated assault. If the evidence had raised the issue, no matter from what source it came, the court should have given an adequate instruction on the law relative thereto, but we confess that we do not find any evidence in the record which raises that issue. If appellant was not at the place at the time of the commission of the offense, he could not any more be guilty of an assault than he was of rape.

*397Appellant complains because the court declined to submit to the jury his requested instruction on the law relative to the necessary force and her resistance thereto. These special charges are all drawn upon the theory of physical force alone and the necessary physical resistance on the part of the female under such circumstances. This rule has no application to the facts of this case. Here the physical force employed was not so great that she might not have overcome the same by strenuous resistance, but force alone was not the only means resorted to by appellant to accomplish his purpose. He combined force with serious threats to take the life of the prosecutrix with a large knife by cutting her head off if she resisted. He thus dominated her will power to resist. By this means he overcame her power of resistance. Consequently the same utmost physical exertion on her part to prevent sexual intercourse would not be required or expected of her by the law. Appellant cites a number of cases as supporting his contention. We are in accord with the doctrine therein expressed but they have no application to the facts of this particular case.

Appellant next contends that while the court, in his charge, instructed the jury relative to an alibi, he should have, in addition thereto, submitted appellant’s requested instruction on mistaken identity. If the issue was raised by the evidence, then he was entitled to such an instruction, but we fail to find sufficient proof in the record to require the submission of such an instruction. The testimony which appellant contends raises the issue came into the case in this manner: Dorothy Ewing, one of the two American girls who sat on the ground near the road when the three Mexican girls passed them and who were followed by a man, was shown a photograph and asked if that was the man. She replied that the picture resembled him but she wasn’t sure, but it looked like him. However; she positively identified appellant. There is not any testimony in the record that the picture did not resemble appellant, nor that the man whose picture was exhibited to her was anywhere near the scene of the commission of the offense. So far as this record discloses, he might have been in confinement or in some other country. The fact that two of appellant’s witnesses testified that while returning from a hunt they saw a man at or near Seventy-fifth Street about 4:30 p. m., who wore a light suit, light felt hat and appeared to be under the influence of intoxicating liquor, would not, in our opinion, be sufficient to raise the issue, because there is not any testi*398mony that appellant was under the influence of intoxicating liquor. Hence, the description is not such as would fit appellant so as to raise a legal presumption that he might have been the culprit who committed the offense.

All other matters urged by appellant as constituting reversible error have been carefully considered by us and deemed to be without merit.

The judgment is affirmed.

The foreg'oing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.