
    BRISCOE v. STATE.
    (No. 10212.)
    Court of Criminal Appeals of Texas.
    June 2, 1926.
    Rehearing Denied April 20, 1927.
    1. Indictment and information <&wkey;l40(2) — Intentional discrimination against colored race in selection of grand jury held not established, though no negroes were drawn.
    In prosecution of negro for rape, defendant held not to have established intentional discrimination against the colored race in the selection of the grand jury, although no negroes were drawn on the grand jury.
    2. Rape &wkey;»59(3) — Instruction that prosecutrix must be corroborated for failing to make outcry held not required.
    In prosecution for rape, where both prose-cutrix and her escort swore positively to the assault, ,that it was by force, and that it was promptly reported, and where there was no issue of consent, failure to instruct that there must be corroboration of the prosecutrix for failing to make outcry held not error.
    3. Rape <&wkey;59(IO) — Instructions on identification of rapist, that jury must believe beyond reasonable doubt defendant committed! offense, and that state had burden of proving identity beyond reasonable doubt, held sufficient.
    In prosecution for rape, instruction that jury must believe beyond reasonable doubt that, on the date named, defendant committed the offense on prosecutrix, and requested special charge that state had burden of proving beyond a reasonable doubt the identity of defendant as the party who committed the offense, held sufficient instructions on identification.
    4. Rape <^>51 (I) — Conviction of rape held sustained by evidence.
    Evidence held sufficient to sustain a conviction of rape.
    On Motion for Rehearing.
    5. Indictment and information &wkey;!40(2) — Defendant had burden of showing alleged race discrimination in selecting grand jury.
    Burden of showing alleged discrimination against the colored race in the selection of the grand jury which returned the indictment was on negro defendant.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Matthew Briscoe was convicted of rape, and he appeals.
    Affirmed.
    See, also, 292 S. W. 893.
    O. B. Black and Henry Lee Taylor, both of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Carl Wright Johnson, Asst. Dist. Atty., both of San Antonio, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in district court of Bexar county of rape; punishment fixed at death.

Appellant moved to quash the indictment herein on the ground that, in the selection of the grand jury which returned same, there was intentional discrimination against the colored race, to which he belonged. This motion was traversed by the state, and on the issue the trial court heard evidence and overruled the motion to quash. His action is presented as error. Appellant produced as witnesses to support his contention the three jury commissioners who drew the grand jury in question. Each of these disclaimed any prejudice against negroes, and denied positively any purpose or intent to discriminate against negroes in the drawing of said grand jury, and swore that the matter was neither discussed among them nor thought of by any of them. They averred that the question as to whether a man thought by. them to be qualified was a negro or not did not enter into the matter at all. They were instructed to get good men who were qualified for jury service, and that nothing in the instruction given them hinted or suggested the fact that negroes should not be drawn. The voting population of Bexar county was variously es; timated at 43,000 up to 100,000, and the negro voting population at from 1,000 to 5,000. We are of opinion that the trial court correctly overruled appellant’s motion. The commissioners were selected at the October term, 1925, to draw a grand jury for the November term of said year. The grand jury was drawn at a time before the arrest of the appellant, which did not take place until .November 21st of said year. The entire proceedings seem to be regular in every way. No restrictions were put on appellant in the introduction of his testimony, or in the consideration of his motion. As we view the matter, he simply failed in his effort to support the allegations of said motion. The authorities cited by appellant refer to intentional refusals to put negroes on the jury. In Whitney v. State, 42 Tex. Cr. R. 283, 59 S. W. 895, we said:

“There was sufficient evidence to show that, in the formation of the grand jury, negroes were intentionally excluded from the grand jury which found the bill of indictment.”

The mere fact that no negroes were drawn on the grand jury would not justify us in concluding that they were purposely excluded, and especially so when this issue was presented and appellant given full opportunity to make proof, which seems entirely wanting.

On alibi, we observe that the exact language of the charge herein given was approved in Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087. See Branch’s Annotated P. C. § 51, for citation of analogous authorities; also McLeroy v. State, 97 Tex. Cr. R. 307, 263 S. W. 309.

On failure to make outcry, the testimony shows that the officers were notified the. same night of the occurrence. Mr. Watkins, who was with prosecutrix when they were attacked and the woman ravished, testified to the above fact, and also further that he carried prosecutrix that night to the Robert B. Green Hospital. She also testified that she went with the police that night out to the place where the assault was made. There was no issue in the case of consent. In Ramsey v. State, 63 S. W. 875, we said that the failure .to make outcry appears to have been treated as a test of consent. Its usefulness for such purpose would be governed wholly by the facts of the particular case. Certainly there is no merit in an exception to the charge for not instructing the jury that there must be corroboration of the prosecutrix for failing to make outcry in a given case, when it appears that she and her escort both swore positively to the fact of the assault and that the ravishment was by force, and that the matter was promptly reported, and where no issue of consent is set up.

On identification of the accused, the court gave the usual charge that the jury must believe beyond a reasonable doubt that on a date named the accused committed the offense of rape upon prosecutrix. In addition, he gave a special charge asked by appellant, to the effect that the burden was on the state to prove beyond a reasonable doubt the identity of the defendant as the party who committed the crime, and that unless they so found beyond a reasonable doubt they should acquit. This was sufficient, and we find nothing in any of the authorities cited by appellant holding to the contrary. The cases of Clevenger v. State, 96 Tex. Cr. R. 23, 255 S. W. 622, Jones v. State, 96 Tex. Cr. R. 332, 257 S. W. 895, Garcia v. State, 101 Tex. Cr. R. 55, 273 S. W. 856, and Garcia v. State, 101 Tex. Cr. R. 423, 275 S. W. 1005, are not on the question of identity, but each of them relates to other questions.

The testimony seems sufficient to support the finding of the jury. Both the woman and her companion identified appellant as one of three negroes who attacked them in the night and ravished prosecutrix.

Einding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWICINS, J.

In his motion for rehearing appellant renews only his claim that there was intentional discrimination in excluding from the grand jury persons of the Negro race to which he belonged.

We have again reviewed all the evidence introduced by appellant on this issue and are confirmed in our view that the conclusion announced in our original opinion is correct. The burden was on appellant to show race discrimination in the selection of the grand jury which returned the indictment. Lewis v. State, 42 Tex. Cr. R. 278, 59 S. W. 1116; Martin v. State, 44 Tex. Cr. R. 539, 72 S. W. 386; Thomas v. State, 49 Tex. Cr. R. 637, 95 S. W. 1069; Mitchell v. State, 105 Tex. Cr. R. 297, 288 S. W. 224. Many other authorities will be found collated under section 586 of Branch’s Ann. Tex. P. C. Appellant wholly failed to discharge the burden resting upon him to show intentional discrimination.

The motion for rehearing is overruled. 
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