Darrett v. State , 134 Tex. Crim. 18 ( 1938 )

Appellants' attorney has filed a vigorous motion for rehearing herein in which he insists that the evidence in this case is so contrary to human experience, and so fantastic that it does not comport with human conduct and reason, and for that failure this cause should be reversed and remanded.

He quotes many cases ostensibly in support of his proposition. Practically all of them are rape cases with the exception of the Harris case, 39 S.W.2d 888, which was discussed in the original opinion.

In rape cases resistance and outcry are often looked to to see if there was a failure of consent, and continued silence, or a claimed situation and circumstances detailed at the scene of the crime sometimes takes a position of such great incredibility as to not only not comport with human experience, but also to cause such a stretch of the imagination as to convince one of its virtual impossibility. Such appears to be true in the majority of cases quoted by appellants' attorney in his motion. We find no such a situation presented here. The prosecuting witness was a person who had lived in the country, and on account of physical infirmities he and his wife were living in the city of Houston temporarily with his daughter. Immediately after the alleged assault, he testified that he communicated such fact to a white man, who promised to inform the police. The appellants also testified that they saw him talking to a white man soon after he left their house. The witness says that he, together with his truck, remained for some time across the street from appellants' house waiting for such police officer, eventually going home, eating his supper, and then going to the police station, where he arrived before dark and sober, so the officer said. We confess our inability to find any such a peculiar set of facts herein as would justify us in saying that such a course of conduct staggers our belief in their truthfulness. We see no other course for the prosecuting witness to have pursued if he was acting in a manner that an ordinary person would and should have acted, taking into consideration all the surrounding circumstances detailed by him at the time of the robbery. He was acting in the only manner that he could have acted within the bounds of reason, so it seems to us, after he had lost his money, in attempting to recover it. That he would report to the police that he had lost his money, when such was not true, and have these women arrested, would seem to be the unreasonable course of conduct; and in order to place such a construction on his conduct, you would have to accept the testimony of appellants, who testified that they gave him his pocketbook, and that it was shut, and that prosecuting witness put it in his pocket without looking in it, and walked out and made no comment relative to being robbed. Such conduct as above ascribed to the witness, in our judgment, does not comport with human experience.

Presiding Judge MORROW in the original opinion herein has gone rather fully into the facts, and we have again gone over the statement of facts carefully, and we do not feel justified in saying that they are not sufficient. The jury has passed upon them fairly, so we think, and we see no reason to disturb its finding.

The motion for rehearing is overruled.