Harris v. State , 115 Tex. Crim. 227 ( 1930 )

The offense is rape; the punishment confinement in the penitentiary for six years.

The sheriff of Harrison County, upon making a search for appellant and prosecutrix, Mary Alice Rhodes, found them in a secluded spot. He testified that prosecutrix was on the ground on her back, and that appellant was on top of her; that appellant was going through motions suggestive of an act of sexual intercourse; that upon seeing him appellant got up and commenced buttoning up his trousers; that he (the sheriff) said, "Ain't you ashamed of yourself?"; that appellant replied: "I am just in one h — ll of a fix"; that prosecutrix said she "hadn't done anything"; that prosecutrix had straw in her hair and on her clothing; and that there was perspiration on her back. Prosecutrix testified that appellant had sexual intercourse with her with her consent. She, her mother and father testified that she was fourteen years of age.

Appellant denied that he had intercourse with prosecutrix. He testified that when the sheriff approached he was not on top of prosecutrix. On cross-examination he said: "I don't remember getting up buttoning my trousers. I will not say that I didn't do that; I wasn't on that girl. You have asked me to give a 'yes' or 'no' answer as to whether I got up from there buttoning my pants, and I will say that I did not. I don't know whether Mr. Sanders saw me buttoning up my trousers or not; I know that I didn't get off the girl doing it. I don't remember buttoning my trousers after I got up. I just don't know whether I buttoned up my trousers or not." Appellant introduced testimony tending to show that prosecutrix was sixteen years of age. He offered no testimony which in any manner showed or tended to show that she was of previous unchaste character.

Appellant offered to prove by prosecutrix that she had told appellant she was sixteen years of age. Upon objection by the state, the testimony was rejected. It should have been admitted as tending to show that prosecutrix was over fifteen and, further, as affecting her credibility. If she had told appellant that she was sixteen and he had believed her, appellant's mistake as to her age would have been no defense. Edens v. State, 43 S.W. 89; Manning v. State, 65 S.W. 920. There was no testimony showing or tending to show that prosecutrix had reached the age of eighteen years. Appellant failed to introduce testimony showing that prosecutrix was of previous unchaste character. Although appellant denied the act of intercourse, his guilt was made plain by his own testimony on cross-examination, as well as by the testimony of prosecutrix and the sheriff. In view of these matters we deem the erroneous rejection of the testimony harmless.

If the court improperly permitted the reports of the school census to be introduced in evidence as tending to show that prosecutrix was fourteen years of age (and it is not conceded that error was committed), appellant could not have been harmed. It was undisputed that prosecutrix was under eighteen years of age. There was no evidence that prosecutrix was of previous unchaste character. Appellant fails to show that he could offer evidence touching the question of unchastity.

The special venire having been exhausted, the sheriff summoned talesmen. Without the consent of appellant, or his counsel, the court excused two of the talesmen. Art. 606, C. C. P. provides: "One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled." It is doubtful whether this article can be construed to apply to talesmen. However, we deem it unnecessary to decide the question. We think the record excludes the idea of injury. Dixon v. State, 238 S.W. 227. This being the case, we would not feel warranted in ordering a reversal.

As the sheriff entered the court room with appellant the court was qualifying the talesmen theretofore summoned by the sheriff. When appellant entered the court room, the talesmen were removed, and thereafter, while appellant was present, were called in one at a time for voir dire examination. It is appellant's contention that an important step in his trial was taken in his absence and that the matter presents reversible error. If we understood the record, the court was swearing the entire body of talesmen at the time appellant entered the court room. Just exactly what was done before appellant entered is not disclosed. It is shown that each juror was examined on voir dire while appellant was present. As present, we are of the opinion that the matter fails to manifest reversible error. Cartwright v. State, 259 S.W. 1085; Powers v. State,5 S.W. 153.

A careful examination of appellant's contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

Affirmed.

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

ON MOTION FOR REHEARING.