Sandoval v. State

KRUEGER, Judge.

The offense is rape. The punishment assessed is confinement in the state penitentiary for a term of five years.

Appellants were separately indicted but on motion of each and all of the defendants, with the consent of the district attorney, the cases were consolidated and they were tried jointly.

Florentina Faz, being the first witness for the State, testified in substance as follows: that on the 11th day of March, 1947, appellants placed her in an automobile and drove out into the country about eight miles where each of the defendants had sexual intercourse with her and then they brought her back to town; that at the time she was not quite 14 years of age; that she would be 14 years of age on the 20th day of June; that she was not the wife of any of the defendants.

Munica Faz, mother of the injured party, testified that Florentina was 13 years of age and would be 14 years old on June 20th. 1947.

After the appellants were arrested, each made a voluntary confession admitting his guilt to the county attorney of Val Verde County after being duly warned by said officer in the manner and form prescribed by law. The confession of each coincides in all material respects with the testimony of the prosecutrix; however, each of the defendants entered a plea of not guilty and filed a plea for suspension of sentence in the event of conviction. The jury declined to recommend a suspension of sentence.

Appellants complain of the action of the trial court in overruling their motion for a new trial based on the following grounds: (a) Newly discovered evidence to the effect that they learned after the jury had retired to consider their verdict that prosecutrix had been examined by Dr. Graham a day or two subsequent to the commission of the alleged offense; that as a result of his examination of her he concluded that she had previously had sexual intercourse with men; that they immediately sought to get in touch with the doctor but were informed that he was confined to a clinic and was unable to discuss any business matters, nor what he had discovered as the result of his examination of prosecutrix, but that they were informed and believed that he would testify upon another trial as claimed by them, (b) That E. A. Davis, one of the jurors who sat in the case, on his voir dire examination stated that he had no prejudice against the application of the suspended sentence when in fact he did have and thereby misled appellants, (c) That after the jurors had deceided upon the guilt of the defendants and had agreed on the punishment to be assessed against each of them (a term of five years), they then discussed whether or, not to recommend the suspension of sentence; that three of the jurors, including Mr. Davis, were opposed to recommending a suspension of sentence and as a reason therefor they argued that if the sentence was suspended appellants might go to some beet field out of the jurisdiction of this state and do the same thing again; that the jury had to take care of society and had to make an example of the boys. On a hearing of the motion, the court heard evidence and upon the conclusion thereof overruled the motion to which appellants excepted. Ordinarily the granting or refusing of a motion for a new trial rests largely within the sound discretion of the court and unless the court abused his discretion with respect thereto no reversible error is shown. See Lewis v. State, 82 Tex. Cr. R. 285; Johnson v. State, 91 Tex. Cr. R. 441; Viser v. State, 98 Tex. Cr. R. 201. Also Art. 753, Note 28, Vernon’s Ann. C. C. P.

Touching the question of newly discovered evidence, it is apparent that if the doctor had been present and had testified as contended for by appellants, it would have been of no avail to them since the injured female was under 15 years of age. See Art. 1183, Vernon’s Ann. P. C. Also Clardy v. State, 66 Tex. Cr. R. 351.

That Davis was opposed to the application of the suspended sentence law and mislead appellants is denied by Mr. Davis, and appellants failed to produce any evidence in support of their contention.

The discussion by the jurors as set forth in the motion was not improper. It was such as the district attorney might have employed in his argument to the jury and we see no reason why the jurors should be prohibited from doing so.

Finding no error in the record, the judgment of the trial court is affirmed.

Opinion approved by the Court.