Dyer v. State

The appellant was convicted of rape in the District Court of Jones County, and his punishment assessed at five years in the penitentiary.

The prosecutrix was 13 years old at the time of the alleged offense, and she testified that the appellant was a visitor in her home a large portion of the day on which the alleged offense occurred; that about 1:00 o'clock in the afternoon the appellant, Myrtle Flowers and the prosecutrix walked about half a mile south of the prosecutrix's home to a branch, where the three seated themselves by a tree; that while there one Bill Hill drove up within about fifty yards of them and sounded his horn, whereupon Myrtle went out to the car, leaving appellant and prosecutrix sitting on the ground by the tree; that while she was there alone with the appellant he had intercourse with her; that at first she would not yield to his request and the appellant became angry and cursed her, telling her to "go to hell," that she was just contrary and would not do it anyway, "and an act of intercourse followed." The prosecutrix further testified that she knew what was meant by her private parts; that she knew what her female organs were; that she knew what the male organs of a man were; and that "the defendant, Jack Dyer, did put his private organs into my private parts on that afternoon." There was also evidence of blood being found on her clothing soon after she arrived home, and that in about fifteen minutes after her arrival home she reported the matter to her mother. There were other circumstances proved in the trial tending to support the state's case. We have reached the conclusion that the record discloses evidence sufficient to support the verdict.

The appellant, by bills of exception 1, 2 and 3, complains of the action of the court in refusing to sustain his motion to quash the special venire. We are unable to agree with the appellant's contention. The bills, as qualified by the learned trial judge, present no error.

Bill of exceptions No. 5 complains that the witness Dr. F. V. McKnight was permitted to testify as follows:

"I did make an examination of her private parts on that occasion; I made an inspection and digital examination. I did find something inside the private organs of the prosecuting witness; I found the semen from a male organ."

We are unable to agree with appellant's contention, for the reason that this testimony would be admissible on the issue of whether or not there had been a penetration of the prosecutrix's private parts, this being a contested issue in the case.

The evidence complained of in bills of exception Nos. 6 and 7 was clearly admissible as a fact or circumstance tending to corroborate the statement of the prosecutrix to the effect that she had been raped by appellant, as she had detailed it to her mother.

Bill of exceptions No. 12 complains of the action of the District Attorney in asking appellant the following question: "You are a married man?" There is nothing in the statement of facts indicating that the question as to whether or not the appellant was a married man was ever inquired into in any manner. This is the only reference of any kind in the record to the appellant being a married man. In view of the fact that the lowest penalty was assessed, we fail to see wherein the appellant has been deprived of any valuable right, or that the jury has appropriated this evidence in assessing the penalty.

In bill No. 13 the appellant complains of the action of the District Attorney in propounding the following questions to the appellant on cross-examination:

"You have heretofore been charged with the offense of seduction, have you not?"

"Isn't it true that you have been indicted for seduction and married the girl to prevent prosecution?"

"Didn't you tell Minnie Flowers about four days before this occurred that you had been charged with seduction?"

"Haven't you told others there at Old Glory that you had been charged with seduction?"

The appellant answered all of these questions in the negative. We are unable to agree with the appellant's contention. The record discloses facts and circumstances tending strongly to prove — and which does prove, if believed by the jury — that the appellant is guilty of the offense charged. The error complained of is a harmless error and does not seem to have been appropriated by the jury, or to have aroused their passions or influenced them in any manner, it appearing that they have assessed the lowest penalty. It was permissible for the state to inquire if a legal accusation for seduction, at a time not too remote, had been lodged against him. The District Attorney went further in some of his questions than is sanctioned by law, but all of them having been answered in the negative and the lowest penalty assessed, we therefore hold that this error would not warrant us in reversing the case.

Bills Nos. 14 and 15 complain of remarks of the District Attorney while making his closing argument. In both instances the appellant's objections to the argument were sustained and the jury were instructed not to consider same. We have carefully examined the remarks complained of and set out in the bills of exception and hold that in neither of said arguments, which were excluded by the court, is there anything seen that would have prejudiced the case. The court having sustained the objections to both of said arguments and instructed the jury not to consider them, and the jury having assessed the lowest penalty fixed by the law, we are unable to say that the arguments excluded were of such prejudicial nature as to justify us in reversing the judgment. Ayres v. State,283 S.W. 828.

We fail to find any objections and exceptions to the court's charge in the record. However, we have examined the charge and find that the rights of the appellant have been amply protected by the learned trial judge.

Finding no error in the record, 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.