Collier v. State
This text of 297 S.W.2d 160 (Collier v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The conviction is for rape; the punishment, five years.
Appellant, age 23, commonly called Pete Collier, lived with his cousin John Jones. Jones’ wife left for California on Friday afternoon to join her husband. She arranged for the children, including a 14-year-old daughter John Evelyn, to stay with their aunt, Lillian Riley, in her home, and left appellant in possession of the Jones residence.
About 2:30 A.M. on December 3; 1955, Helen Horn, who lived next door to the Jones home, heard a noise that “sounded as if somebody was fighting.” She had seen John Evelyn at the Jones home the day before and knew that her parents were away and that appellant was occupying the home.
Helen Horn went to the Jones home and called John Evelyn. [92]*92She heard a female voice that she took to be that of John Evelyn, but did not understand what she was saying.
A man’s voice, which she took to be appellant’s, answered her second call and said that John Evelyn was not there.
Helen Horn then went to the house of Lillian Riley and asked her to investigate and she did.
Being unable to get in at the front door, Lillian Riley went to the back. Appellant opened the back door and admitted Lillian, and Helen Horn later went in.
Appellant was in his underwear and was drunk, and the house was dark.
The 14-year-old girl was lying in bed and was vomiting. She was either asleep or unconscious.
The cover was pulled off the girl and it was found that there was much blood on her and on the bed and cover.
The girl was taken to the McGrath Clinic by Lillian Riley, acompanied by appellant who was there arrested for drunkenness.
Pauline Pace, a nurse at the clinic, testified that the girl was brought to the clinic about 4 A.M.; that her aunt (Lillian Riley) asked her “who did this to you?” and the girl replied “Pete Collier did it.”
Lillian Riley testified that the girl was not conscious from the time she found her until after this visit to the clinic and that she did not ask her any question and did not hear any statement from her.
Later in the morning the girl was examined at the clinic by Doctor J. J. McGrath who testified for the state, and whose qualifications to testify as a medical expert were admitted. Dr. McGarth testified that the girl was brought to him and he made the examination for the purpose of determining whether or not she had been raped; that her external female organs were covered with clotted blood; that his examination made after the girl had been cleaned up and the clotted blood removed, disclosed that there were some lacerations in the posterior wall of the en[93]*93trance to the vagina, one perhaps an inch long, and two others; that blood was oozing from the lacerations.
Based upon his examination of the girl, Dr. McGrath expressed the opinion that the girl had been raped.
On cross-examination Dr. McGrath admitted that the lacerations in the mucus membrane lining of the girl’s vagina could have been caused by the introduction of a coca cola bottle, a broom handle or any cylinderical object big enough to cause a stretching “but that wasn’t the most likely thing to cause it.”
The doctor testified it was not medically true that an intact hymen or maiden-head indicates that there has been no sexual intercourse and explained that the girl’s hymen was not of a character to have prohibited intercourse without rupture, but would admit “anything as big as my two fingers without tearing at that particular time.”
Appellant testified that he arrived at the Jones house, where he lived, about 2 A.M., and brought with him a gallon of wine, which he made available to the girl. He denied molesting the girl in any way but admitted that he was drunk or “half drunk and asleep” when the neighbor and the girl’s aunt came to investigate.
The girl’s testimony was to the effect that she was “pretty well passed out” after drinking the wine and that appellant did not do anything to her, “not as I knows of.”
The court submitted the case to the jury as one of circumstantial evidence and we find the evidence sufficient to sustain the verdict.
Appellant does not challenge the sufficiency of the circumstantial evidence to sustain the conviction but in connection with his sole ground for reversal points to the failure of the girl to testify that appellant committed the offense.
Bed sheets taken from the room in which the girl was found were offered in evidence and were taken to the jury room while the jurors were deliberating.
One of the jurors, upon examination of the bed sheets, concluded that yellow stains thereon not previously found, pointed [94]*94out or identified, were caused by discharge from a male sexual organ.
The juror had a right to examine the exhibits and to determine for himself what the exhibit was and what if any weight it should be given.
The statement of this juror that the stains were in fact so caused is advanced as ground for new trial because of the receipt of additional testimony by the jury during their deliberations.
The record shows that it was after the other eleven jurors had voted guilty that the Juror Harrison examined the exhibits in the jury room and identified the stains found thereon as being the discharge from the male organ.
The statement of the Juror Harrison was not made until all of the other jurors had decided that appellant was guilty, and the minimum punishment was assessed.
If the statement made at that time can be considered as additional testimony, a point we need not decide, no injury to appellant is shown.
A juror’s statement during the jury’s deliberation, to require reversal, should be such that reason and common sense can see it was harmful to the accused. Howard v. State, 122 Texas Cr. Rep. 371, 55 S.W. 2d 1048.
We confess our inability to see how the statement of the juror, of his conclusion formed from examining the exhibits in the ease, could have then influenced the other jurors who were then and remained convinced of appellant’s guilt.
There being no possible harm or prejudice to appellant, the trial court did not err in overruling the motion for new trial.
The judgment is affirmed.
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Cite This Page — Counsel Stack
297 S.W.2d 160, 164 Tex. Crim. 91, 1956 Tex. Crim. App. LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collier-v-state-texcrimapp-1956.