MORRISON, Presiding Judge.
The offense is rape; the punishment, death.
Since the sole defense was that of insanity, the state’s case will be summarized.
A fifty-four year old Dallas housewife responded to a knock on her door, where she was met by a twenty-six year old married industrial worker who was masked and armed. At the point of a pistol, he robbed her of five dollars, forced her to enter a bedroom, ordered her to disrobe, had intercourse with her in one fashion, and, not being satisfied, ordered her to her knees and required her in vulgar language to commit an act of sodomy upon his private parts. Following this, he consummated the act of intercourse in another fashion, then bound and gagged her, and left the house admonishing his victim not to call the police and threatening to return and kill her if she did.
[553]*553As he walked through the front yard, where he abandoned the silk stocking mask which he had been wearing, he was accosted by Policeman Hillard, who, thanks to the alertness of Mrs. Patterson, a neighbor, was on the scene. Hillard asked for the appellant’s identification and was in the process of questioning him when the woman who had been raped called out to him. The appellant, who had until this moment acted normally toward the officer, began to back away, drawing his pistol. The appellant fired twice at the officer, and the officer felled the appellant with his service revolver.
After the gunfight and prior to the arrival of the ambulance, while his victim was in the front yard identifying the appellant, the appellant extracted a bill from his person and threw it at her, saying “I only took five dollars from you.”
The appellant’s mother, wife, various family friends and former co-workers, testified that the appellant had not always acted normally and expressed the opinion that he was insane.
The state countered with medical and lay testimony to the effect that the appellant was sane.
The jury resolved this disputed issue of the appellant’s sanity against him, and the evidence amply supports their verdict.
We shall discuss the bills of exception so ably presented by appellant’s court-appointed counsel in brief and oral argument.
Bill of Exception No. 1 relates to the formation of the jury. From it, we learn the following: After several of the venire had been selected, sworn and sent to the jury room, the juror Harris was selected and joined the others. While waiting for the jury to be completed, Harris fell backward in his chair and sustained certain injuries. This fact was made known to the court, who, after securing the approval of the appellant personally and his counsel, sent a doctor, accompanied by an officer, to the jury room. The doctor reported to the court that juror Harris required immediate hospitalization and would be unable to sit on the trial. At this juncture, the court explained to, appellant personally and to his counsel that Harris might be excused from the panel if all agreed, and if they did not agree the veniremen who had been selected would be discharged and the trial would be held at a later date. After consultation with his attorneys, the appellant agreed to discharge Harris and continue with the selection of the panel. After the panel was completed, without [554]*554the appellant having exercised all of his challenges, the court again called the appellant and his counsel to the bench and offered to discharge the completed panel and start all over again if the jurors then in the box were not satisfactory to all concerned. The appellant again stated that the jury which they had just completed selecting was satisfactory to him.
Appellant contends that, even though he agreed to the discharge of juror Harris, he had" no legal right to do so and may now ask for a reversal of this conviction.
He relies upon four cases, all by the court of appeals before the creation of this court. In Early v. State, 1 Crim. App. 248, the jury separated after their selection had been completed and after they had heard some of the evidence. This court held that a new trial should have been granted because of the danger of injury to appellant inherent in any jury separation. In Hill v. State, 10 Grim. App. 618, eight of the jurors had been accepted when the court on his own motion, without the consent of the appellant or his counsel but without the appellant objecting, excused one of the eight. This court held that the fact that the accused stood mutely by, neither consenting nor objecting, did not waive the appellant’s rights to complain of the action of the court.
In Ellison v. State, 12 Crim. App. 557, after eleven of the jurors had been selected, one of the eleven made it known to the court that he was suffering from an ailment. The court, without the consent and over the objection of the accused, excused the juror and completed the panel. This court held that the trial court should have excused the entire panel and proceeded with the formation of another.
In Sterling v. State, 15 Crim. App. 249, decided in 1883, the most recent case upon which the appellant relies, before the selection of the jury was complete, one who had been selected made it known to the court that there was illness in his family, and the court excused him from the jury. Appellant’s counsel agreed that the juror might be excused, but the appellant remained silent. This court held that there must be an express waiver of the accused himself and that the action of his counsel could not bind him.
We think that the statement of the facts reflected by this bill distinguishes this case from those relied upon by the appellant. We do observe, however, that the trend of judicial decision [555]*555in this state is best reflected by Burton v. State, 129 Tex. Cr. Rep. 234, 86 S. W. 2d 763, decided by this court fifty-two years after the Sterling case. In the Burton case, after some of the jurors had been selected, the court learned that one of them had been convicted of a felony and was thus disqualified to act as a juror. The court discharged the disqualified juror, over the appellant’s objection, and this court affirmed the judgment.
In the case at bar, it is shown that the careful trial court gave the accused his option at every stage in the process of jury selection, and the appellant, we have concluded, should not be allowed to complain that he exercised such option unwisely.
Bill of Exception No. 2 relates to jury argument in which the prosecutor said:
“What did he do then? The most abhor ant thing that you men could imagine to your minds — was to order this woman who you saw here — this 54 year old woman to get down on her bare knees and lick, lick his sexual parts.”
In Lewis v. State, 265 S. W. 709, we said:
“In stating to the jury the facts embraced in the argument, counsel apparently added nothing to that of which the jury was aware through the legal introduction of testimony. Ordinarily it is not beyond the scope of proper argument to comment upon facts legally before the jury.”
Bill of Exception No. 3 relates to argument of practically the same nature.
Bill of Exception No. 4 relates to the following argument:
“Let’s look here a minute and see what this filmsy defense that you had of insanity.”
We think it proper for any advocate to disparage the case of his opponent if he speaks with propriety and does not go outside the record.
Free access — add to your briefcase to read the full text and ask questions with AI
MORRISON, Presiding Judge.
The offense is rape; the punishment, death.
Since the sole defense was that of insanity, the state’s case will be summarized.
A fifty-four year old Dallas housewife responded to a knock on her door, where she was met by a twenty-six year old married industrial worker who was masked and armed. At the point of a pistol, he robbed her of five dollars, forced her to enter a bedroom, ordered her to disrobe, had intercourse with her in one fashion, and, not being satisfied, ordered her to her knees and required her in vulgar language to commit an act of sodomy upon his private parts. Following this, he consummated the act of intercourse in another fashion, then bound and gagged her, and left the house admonishing his victim not to call the police and threatening to return and kill her if she did.
[553]*553As he walked through the front yard, where he abandoned the silk stocking mask which he had been wearing, he was accosted by Policeman Hillard, who, thanks to the alertness of Mrs. Patterson, a neighbor, was on the scene. Hillard asked for the appellant’s identification and was in the process of questioning him when the woman who had been raped called out to him. The appellant, who had until this moment acted normally toward the officer, began to back away, drawing his pistol. The appellant fired twice at the officer, and the officer felled the appellant with his service revolver.
After the gunfight and prior to the arrival of the ambulance, while his victim was in the front yard identifying the appellant, the appellant extracted a bill from his person and threw it at her, saying “I only took five dollars from you.”
The appellant’s mother, wife, various family friends and former co-workers, testified that the appellant had not always acted normally and expressed the opinion that he was insane.
The state countered with medical and lay testimony to the effect that the appellant was sane.
The jury resolved this disputed issue of the appellant’s sanity against him, and the evidence amply supports their verdict.
We shall discuss the bills of exception so ably presented by appellant’s court-appointed counsel in brief and oral argument.
Bill of Exception No. 1 relates to the formation of the jury. From it, we learn the following: After several of the venire had been selected, sworn and sent to the jury room, the juror Harris was selected and joined the others. While waiting for the jury to be completed, Harris fell backward in his chair and sustained certain injuries. This fact was made known to the court, who, after securing the approval of the appellant personally and his counsel, sent a doctor, accompanied by an officer, to the jury room. The doctor reported to the court that juror Harris required immediate hospitalization and would be unable to sit on the trial. At this juncture, the court explained to, appellant personally and to his counsel that Harris might be excused from the panel if all agreed, and if they did not agree the veniremen who had been selected would be discharged and the trial would be held at a later date. After consultation with his attorneys, the appellant agreed to discharge Harris and continue with the selection of the panel. After the panel was completed, without [554]*554the appellant having exercised all of his challenges, the court again called the appellant and his counsel to the bench and offered to discharge the completed panel and start all over again if the jurors then in the box were not satisfactory to all concerned. The appellant again stated that the jury which they had just completed selecting was satisfactory to him.
Appellant contends that, even though he agreed to the discharge of juror Harris, he had" no legal right to do so and may now ask for a reversal of this conviction.
He relies upon four cases, all by the court of appeals before the creation of this court. In Early v. State, 1 Crim. App. 248, the jury separated after their selection had been completed and after they had heard some of the evidence. This court held that a new trial should have been granted because of the danger of injury to appellant inherent in any jury separation. In Hill v. State, 10 Grim. App. 618, eight of the jurors had been accepted when the court on his own motion, without the consent of the appellant or his counsel but without the appellant objecting, excused one of the eight. This court held that the fact that the accused stood mutely by, neither consenting nor objecting, did not waive the appellant’s rights to complain of the action of the court.
In Ellison v. State, 12 Crim. App. 557, after eleven of the jurors had been selected, one of the eleven made it known to the court that he was suffering from an ailment. The court, without the consent and over the objection of the accused, excused the juror and completed the panel. This court held that the trial court should have excused the entire panel and proceeded with the formation of another.
In Sterling v. State, 15 Crim. App. 249, decided in 1883, the most recent case upon which the appellant relies, before the selection of the jury was complete, one who had been selected made it known to the court that there was illness in his family, and the court excused him from the jury. Appellant’s counsel agreed that the juror might be excused, but the appellant remained silent. This court held that there must be an express waiver of the accused himself and that the action of his counsel could not bind him.
We think that the statement of the facts reflected by this bill distinguishes this case from those relied upon by the appellant. We do observe, however, that the trend of judicial decision [555]*555in this state is best reflected by Burton v. State, 129 Tex. Cr. Rep. 234, 86 S. W. 2d 763, decided by this court fifty-two years after the Sterling case. In the Burton case, after some of the jurors had been selected, the court learned that one of them had been convicted of a felony and was thus disqualified to act as a juror. The court discharged the disqualified juror, over the appellant’s objection, and this court affirmed the judgment.
In the case at bar, it is shown that the careful trial court gave the accused his option at every stage in the process of jury selection, and the appellant, we have concluded, should not be allowed to complain that he exercised such option unwisely.
Bill of Exception No. 2 relates to jury argument in which the prosecutor said:
“What did he do then? The most abhor ant thing that you men could imagine to your minds — was to order this woman who you saw here — this 54 year old woman to get down on her bare knees and lick, lick his sexual parts.”
In Lewis v. State, 265 S. W. 709, we said:
“In stating to the jury the facts embraced in the argument, counsel apparently added nothing to that of which the jury was aware through the legal introduction of testimony. Ordinarily it is not beyond the scope of proper argument to comment upon facts legally before the jury.”
Bill of Exception No. 3 relates to argument of practically the same nature.
Bill of Exception No. 4 relates to the following argument:
“Let’s look here a minute and see what this filmsy defense that you had of insanity.”
We think it proper for any advocate to disparage the case of his opponent if he speaks with propriety and does not go outside the record. We do observe considerable conflict in the testimony of the defense witnesses on the issue of insanity. Some of his fellow employees testified that in their opinion the appellant was insane, while others stated that he was sane. Some defense witnesses testified that the appellant had been normal and had been a good worker before he went into the armed services but acted strangely after his discharge, while others testified [556]*556that he had acted peculiarly since infancy. Appellant’s wife gave incidents of forgetfulness as manifestations of the appellant’s insanity. She said that on the morning of the rape he had acted strangely in that he drove through a red light and then denied having done so. She admitted, however, that the appellant had just completed a twelve-hour night shift and looked sleepy.
We have concluded that what we have said with respect to Bills of Exception Nos. 2 and 3 properly disposes of Bills of Exception Nos. 5, 6, 7 and 8. Certainly, under the facts of this case, the prosecutor was authorized to characterize this case as an aggravated one which empowered him to urge the jury to inflict the death penalty.
In the light of the penalty here involved, we have carefully examined the record in its entirety and fail to find any reversible error.
The judgment is affirmed.