Tindol v. State

239 S.W.2d 396, 156 Tex. Crim. 187, 1951 Tex. Crim. App. LEXIS 1518

• Court: Court of Criminal Appeals of Texas
• Decided: April 11, 1951
• Docket: 25220
• Status: Published

Opinions

DAVIDSON, Judge.

This is a conviction for rape; the punishment, twenty-five years in the penitentiary.

The prosecutrix is the niece of appellant, and at the time of the commission of the alleged offense was fourteen years of age.

The prosecutrix testified to facts showing that appellant forcibly and against her will engaged in an act of intercourse with her while in the front seat of an automobile.

A sister seated in the back seat of the automobile witnessed the act, and testified relative thereto.

The two girls made a report to relatives, as also to the sheriff, a short time thereafter.

According to the testimony of a physician, who examined the prosecutrix the same day of the alleged act, he found “the mouth of the vagina was torn and bleeding,” and presence of the male spermatozoa was found “deep within the vagina.”

The facts warranted the jury’s conclusion of guilt, and appellant’s contrary contention is overruled.

Appellant, testifying as a witness in his own behalf, denied the alleged act and accounted for his presence at such time and place in such detail and under such circumstances as to show that he did not and could not have committed the offense.

Complaint is made of the overruling of a first application for a continuance because of the absence of the witness Boodell, by whom it is alleged appellant could have corroborated certain features of his defensive testimony. The absent witness was not under due process of the court.

The state insists that such was the result of the failure of the appellant to exercise reasonable diligence to secure the attendance of the witness. Having concluded that the action of the trial court should be sustained for another reason, that question will not be discussed.

Neither the bill of exception nor motion reflects that the absent witness would have testified, as alleged. No affidavit of the absent witness attesting the fact that he would so testify accompanies the record. A continuance is not granted to an accused as a matter of right, but is a matter addressed largely to the discretion of the trial court. Art. 543, Sec. 6, C. C. P.

It has been the repeated holding of this court that where no affidavit of the absent witness attesting that he would testify, as alleged, is before the trial court upon the hearing of the motion for new trial, the trial court has the discretion to find that the absent testimony was not probably true, or that a different result might not have been reached by the jury had the absent testimony been before them. 9 Tex. Jur., Continuance, Sec. 148, p. 855. Shuler v. State, 132 Tex. Cr. R. 571, 105 S.W. 2d 1095.

Several bills of exception appear complaining of the introduction of testimony. These bills are in question-and-answer form, with no certificate of the trial court for the necessity that they be so drawn. The state challenges our consideration of such bills. Under the established precedents, the challenge is well taken, and such bills cannot be considered by us.

The prosecutrix, being at the time of the commission of the alleged offense under the age of fifteen years, no necessity existed for the trial court to instruct the jury relative to prior acts of intercourse by prosecutrix with others as constituting a defense, as requested by the appellant.

The bill of exceptions presenting this matter is in question- and-answer form, with no certificate of the trial court that same be so drawn. Also, the statement of facts touching this question and developed upon the hearing of the motion for new trial is in question-and-answer form.

The state challenges our consideration of the question by reason of such question-and-answer record. The challenge must be sustained, under the mandatory provisions of Art. 760, C. C. P.

Other bills of exception have been examined, and are overruled without discussion.

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

Opinion approved by the court.