Murray v. State

Appellant was charged with rape by force, threats and fraud on the person of a young girl seventeen years of age, and given a death sentence by the jury.

The injured young lady and her sweetheart were together in a car on a road near Denton, Texas, in the early afternoon of November 28, 1943, and while listening to the radio were approached by appellant, who requested the gift of a cigarette, and upon being told that they had no cigarettes, the appellant left them, but soon returned, and, after exhibiting a pistol as well as a knife, demanded the young gentleman's billfold, which was given to him; he ordered the couple to get out of the car and over into some woods near by, still holding the knife, and the pistol on them. While going to the woods he kept jabbing the young man in the back with the knife, and also stabbed him twice on the arm. Appellant then began to talk about the difference between the white and the colored races, and evidenced that he intended to have intercourse with the white young lady, at which time the young man struck appellant, and appellant stabbed him repeatedly with the knife, and there began a struggle over the knife, the young man being cut severely therewith many times, and it soon became lost in the struggle. Eventually the girl became possessed of the pistol, and tried to shoot appellant but did not understand its peculiar mechanism, and failed to shoot it; the young man finally got the pistol however, and fired one shot from it but hit nothing, and he soon became unconscious from his wounds. Appellant then grasped the young lady, struck her in the face with the gun, knocked her down, took her clothes off, and achieved his purpose of raping her, despite her vigorous resistance. He then threatened to kill her if she told, and ordered her to keep her head down for an hour. She did not do so, but did keep her head down some few minutes, and upon raising her head, she was again ordered to keep it down for an hour, this whole transaction lasting from 3 o'clock until about sundown. Appellant then left the scene, and was afterwards apprehended after having exhibited his knife and pistol in an endeavor to escape from his captors. There can be no doubt of this man's guilt.

This offense was alleged to have taken place on November 28, 1943. On December 8, 1943, the grand jury of Denton County returned the indictment herein, and same was then filed in the district court of that county. On the 11th day of December, 1943, appellant was brought into open court for the purpose of being arraigned, and upon it being shown that he had no counsel, and was too poor to employ same, T. B. Davis, a practicing attorney of that court, was appointed to defend appellant in such cause; at which time appellant was arraigned, and being asked relative to his guilt in this cause, he answered that he was guilty as charged in the indictment. He was then admonished by the court, as required by law, and it appearing that he was sane, and uninfluenced in making such plea by fear, or any delusive hope of pardon prompting him to make such plea, the same was received by the court, and this cause was then set for December 16, 1943, at which time a jury was impaneled and sworn, and testimony was taken. After the State had rested its case, and during the night of December 16, 1943, appellant's attorney learned for the first time that appellant had been adjudged to be a lunatic on July 15, 1943, and had on July 27, 1943, escaped from the lunatic asylum for colored people at Taft, Oklahoma. After such fact was communicated to the trial court, the judge thereof withdrew appellant's plea of guilty and entered for him a plea of not guilty, and the trial proceeded thereunder. The case was reopened and the State then assumed the burden of showing the present sanity of appellant, and was charged with such in the court's charge, and further witnesses were examined relative to appellant's conduct after the commission of the offense alleged herein.

There are no bills of exceptions in the record, but we do find a motion to allow appellant to withdraw his announcement of ready, and postpone this cause to some future day of the court term because of the fact that appellant's attorney had only learned of appellant's conviction for insanity after the State had rested its case, such knowledge having finally come to the attorney about 11 o'clock P. M. on December 16, 1943. We note, however, that the affidavit appended to such motion was sworn to and filed on December 18, 1943, the jury having returned its verdict on December 17th, or the day before the motion was filed. We also notice that this motion was merely filed, and there does not appear in the record any evidence that same was presented to the court, nor that he ever made any ruling thereon. It also does not appear that any exception was taken to any ruling or procedure thereunder. The motion itself is not in proper form as is required by Art. 543, C. C. P. But be that as it may, we early held in the case of Nelson v. State, 1 Tex. App. 44[1 Tex. Crim. 44], that:

"The former decisions of our courts, from the earliest days down to the present, make the saving of a bill of exceptions a prerequisite and sine qua non to revisory action by the appellate court," citing many early cases.

In the case of O'Leary v. State, 13 S.W.2d 860, our present Presiding Judge said:

"A serious question might be presented if complaint at the denial of postponement had been brought forward by bill of exception, but none is found in the record. It has been the long and consistent holding of this court that the action of the lower court in refusing a postponement or continuance would not be reviewed, unless brought forward by bill of exception, and that it is not sufficient to complain of such action in the motion for new trial. The reasons for this holding appear in many cases dealing with the subject and it is not necessary to again elaborate. Many cases are collated under section 304, Branch's Ann. Tex. P. C., beginning with Nelson v. State, 1 Tex. App. 41[1 Tex. Crim. 41]. Recent cases are Turner v. State, 109 Tex. Crim. 301,4 S.W.2d 58; Miller v. State, 93 Tex.Crim. R.,246 S.W. 87."

We said in the case of Stovall v. State, 16 S.W.2d 242:

"There was an application for continuance, but no bill of exceptions was taken to its refusal, in which event we are compelled to hold that the action of the court must be deemed satisfactory to appellant."

Also see Texas Digest, Vol. 13, p. 459, Key No. 1090, and many cases there cited, all holding that a bill of exceptions is a necessary requisite to a motion for a continuance before a refusal thereof will be reviewed by this court.

The State assumed the burden of proving appellant's present sanity, and offered witnesses relative thereto. The facts themselves evidenced an enforced association between the two injured parties and appellant over a period of hours, appellant's greed being evidenced as well as his lust towards the young lady; his fear of detection and effort to escape evidencing his fear of punishment for the deeds committed doubtless had some weight with the jury as to their finding relative to his knowledge of right and wrong, and the consequences of his act. They were instructed, in substance, to acquit appellant unless they found him sane, the burden of showing his sanity being upon the State. We cannot say that the jury was mistaken in their conclusion in the light of the evidence. The motive in his actions seems to suggest that of lust for the person of this young girl, and a knowledge of the serious consequences following the gratification of such lust, evidently possessed of a knowledge that he was committing a wrong.

We see no error evidenced in the record, and the judgment is affirmed.

ON MOTION FOR REHEARING.