Young v. State , 150 Tex. Crim. 378 ( 1947 )

BEAUCHAMP, Judge.

The conviction is upon an indictment charging rape of a female not his wife, who is under the age of fifteen years. The penalty assessed is death.

The appellant is a married man, was twenty-seven years of age at the time of the trial, and had one child, a girl twenty months old. He testified in his own behalf, identifying himself as the proper party, and admitting sexual intercourse with the prosecutrix on the date alleged. He testified, however, that the meeting was by previous arrangement through another girl, and that his act was with the consent of the prosecutrix. He asked for suspended sentence in case of conviction. He also detailed the movements of the parties much in keeping with that hereinafter more fully set out; his association with the other men charged in the crime, their drinking some seven to ten bottles of beer each at different places during the evening, and finally, the purchase of two pint bottles of whisky. He denies the robbery detailed by other witnesses, and pictures his companions, together with two boys, in company with the four girls, as being engaged in a wild party of some four hours of the night.

Contrary to the statement of appellant, the state’s evidence with much detail and consistency between the witnesses is summarized by the state’s attorney, in his brief, in a very accurate manner which we quote as follows, omitting the names, other than the given name of each of the girls involved, as well as of their innocent companions, the two boys.

“The statement of facts reflects that on the night of the commission of said alleged offense Billie, a girl fourteen years of age, and her young girl friend, Thelma, went to a cafe in Libson about seven o’clock in the evening for the purpose of meeting two other young girl friends, Virgie, fifteen years of age, and Stella, also fifteen years of age, and that the four intended to go to Tipton’s skating rink and dance hall. While they were in the cafe two young boy friends of theirs, Douglas, age six-' teen- years, and A. J., age seventeen, came by in A. J.’s Ford coupe. The girls got in the car with them and before they had driven very far they passed the bus and saw Virgie and Stella on it; they turned, went back to Lisbon and picked up those two girls and all went to Tipton’s. Upon arriving there the two boys started skating and the four girls went to Lancaster to a ball game, returning in about an hour but stopped on their way back at a drugstore for ice cream. Upon their return to Tipton’s all six of them, the four girls and two boys, went back to Lancaster to the ball game and stayed until it was over, about ten o’clock at night. They then decided to go back to Tipton’s, all six of them in the Ford coupe. Thelma and Billie were sitting in the back of the car and the other four were in the seat.

“As they circled the square in Lancaster a car was observed following them. A. J. stopped at a filling station to get water for his car and the car which had been following them stopped on the opposite side of the street. After securing the water they started for Tipton’s, and the car which had been parked across the street started up and met them on the next corner, and when they had gone about two miles the car pulled up alongside of them and one of the occupants, later identified as appellant, pointed a pistol at the driver and said, ‘Pull over and stop.’ He complied by pulling his car to the side of the ditch and stopping. They were all then told to get out of the car.

“There they took a billfold and its contents from A. J., one also from Douglas, and a purse from Stella.

“It developed that there were three men in the second car, which was a two-seated car, and that they not only had a pistol but had a rifle also. ■

“While they had these young people there on the side of the road a blue Ford came up and someone asked ‘What’s the matter?’ and Young said, ‘Oh, we’ve had a flat. Go on. We have it fixed now.’

“The three men then got in the front seat of their car and required the six young people to get in the back seat of the car. They kept the pistol and rifle drawn on these young people and told them to not say a word, for if they did they would kill all of them. From the point where they first stopped the Ford coupe they drove about a mile or so down the main road and then turned off on a dirt road, far enough away from the main road so as not to be seen by occupants of a passing car.

“After they arrived at this point on this side road the three men decided their car was about out of gasoline and asked A. J. if he had any gasoline in his car, and A. J. told them he must have four or five gallons. One or two of the three parties went for his car and brought it, but they were unable to syphon any gasoline out of it for their car. Thereupon, one or two of said parties were sent in the car to get gasoline. While they were gone all of the young people were kept under guard at the point of a gun.

“The three men who had stopped, kidnapped and held the young people prisoners, referred to each other by number during the night in question, Young, the appellant, being referred to as No. 6, Riddle as No. 3, and Jett as No. 9.

“When the parties came back from getting the gasoline Jett took Billie off back of the car and there raped her, and told her that if she didn’t submit he would tell them to kill aU of you, not only you, but all of you. They went back to where the remainder of said persons were, and then Young carried Virgie, and Riddle took Stella off some little distance from the car, each raping the girl which he had taken, while Jett acted as guard, keeping the others prisoners. After they returned Jett again took Billie away and again raped her and brought her back; then Riddle took Thelma away, and Young took Billie down the road and told her that she was the only girl that he wanted anything from. She begged him to leave her alone. He wouldn’t do it and told her that if she didn’t he would kill her. He removed her clothes, and by force had intercourse with her, telling her that if she didn’t submit he would not only kill her but the rest of them. Riddle did not rape Thelma for the reason that her monthly periods were on.

“After Young brought Billie back the six young people, already in their Ford coupe, were told by Young not to tell anyone what had happened because if they did he would find it out, that it would be in the papers, and that he would not get them all at once but that he would get them one at a time. He told them how to carry the several persons home; to take Stella to Lancaster first, and then carry Thelma to Lisbon, and then to carry Virgie and Billie home. They carried out the instructions, and when they arrived at Billie’s home she and Virgie went in and there reported to Billie's mother what had happened, this being probably about two o’clock in the morning. The girl’s mother called the two boys, their companions, in the house and then officers were notified and came out and a complete report was made to them. Subsequently, appellant and his companions in crime for the night were arrested and indicted.”.

Appellant brings forward five bills of exception, the first four of which complain of the admission in evidence by the court of testimony as to the acts of rape on the other girls present, and on the prosecutrix by James Jett. In each of these bills this testimony is referred to as stating that the complained of transactions were “* * * at the time and place where the offense is alleged to have been committed.” Such statement seems to be in accord with the record. Under this state of facts the evidence was admissible. See 18 Texas Jurisprudence, page 77, section 39, and authorities there discussed; White v. State, 7 S. W. (2d) 1086, with authorities therein discussed.

We have noted very carefully the proposition of appellant in his brief, together with authorities cited. This proposition is that the “acts, conduct and violations of the law by third persons, not in the presence of the defendant, and not connected with the transaction for which appellant was on trial, is not admissible * * (Emphasis ours.) The record is without dispute that all of the other offenses were at the same time and place, and a part of the transaction in which all parties were engaged as principal offenders; and, as stated by the court’s qualifications to the bills, the record “showed a conspiracy and an acting together by each of said parties in carrying out the common design to rape by force, the several girls in the group, while they maintained domination and control of the entire group of girls and boys by the use of firearms.” It showed a continuity of action from the time the party of young people were taken into custody until their release.

This qualification sufficiently sustains the action of the court in admitting the evidence. It is noted further that the offense for which appellant was on trial was the last act performed by the parties, and that it is hardly describable without detailing all of the things that went before, which is necessarily admissible evidence.

The fifth bill of exception relates to the argument of the assistant district attorney who, it appears, attempted to make reference to the ages of the girls involved which was, it is indicated, to be followed by some reference to the children of jurors. The statement- he had in mind making is not revealed. The cautious trial court sustained the objection instantly, when made, and instructed the jury not to consider what had been said. We find nothing inflammatory in the predicate which the assistant district attorney is quoted to have made in an effort to argue something further before the jury. Furthermore, the bill of exception is defective and may not be considered for the reason that there is no statement negativing the possibility that counsel for appellant had invited the argument, or that it was in reply to any defensive argument.

The investigation of this crime by the law enforcement officers, as well as the trial of the case which was conducted with great care and caution, reflects much credit on the officers involved. We find no support in the record reflecting on the previous conduct of the girls involved other than that found in the testimony of the accused. Even if the jury had accepted his statement for its full value, they would have been authorized under the law to inflict the extreme penalty. The circumstances depicted by the evidence require no comment to justify the jury’s verdict. It was their province to find appellant guilty and to assess the penalty. This they did, concluding a trial upon a valid charge with legal evidence.

A review of the case reveals no error requiring a reversal. The judgment of the trial court is affirmed.