Ellis v. State , 33 Tex. Crim. 86 ( 1894 )

1. This conviction was for rape, the assessed punishment being fifty years in the penitentiary. By a witness defendant offered to prove, "that he knew the prosecutrix, and knew that she was generally regarded in the neighborhood in which she resided as a person not having good sense." This testimony was properly rejected. Insanity can not be proved by general reputation. Further, by the same witness, he proposed to prove that he "had known the prosecutrix for a number of years, and knew her well, and knew that she did not have good sense, and that she was about half-crazy." This was offered for the purpose of "affecting the testimony" of the prosecutrix, and to show her to be of weak intellect. While this may be done and by nonexpert testimony, yet it must be done legally. Where the testimony of nonexperts is relied upon to prove insanity, the opinion of such witness may be given; but, in order to elicit such testimony, the facts and circumstances upon which the opinion is based must be stated by the witness as a prerequisite to the opinion. This was not done in this case. Willson's Crim. Stats., sec. 87, and authorities cited.

2. There was no error in refusing the charge upon the law of circumstantial evidence. The testimony is positive that defendant committed the rape.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.