Russell v. State , 33 Tex. Crim. 424 ( 1894 )

Appellant was charged with and convicted of rape upon a girl under the age of 12 years, his punishment being assessed at ninety-nine years in the penitentiary. His application for a continuance having been overruled, he made this ruling a ground of his motion for a new trial.

By Henry Washington he expected to prove that he was in the vicinity of the spot where it is alleged the offense was committed, and heard no hallooing or call for assistance." The girl testified to the fact she made outcry. The statement of the proof expected to be made by the absent witness is too indefinite, vague, and uncertain. "In the vicinity" is too general. The "vicinity" covers too much space or territory. Where was the witness? Does "vicinity" mean a few yards, or a mile? What relation does "vicinity" bear to the "spot where * * * the alleged offense was committed?" "In the vicinity" fixes nothing definitely as to locality.

By Wren it was expected to be shown, that "he examined the place where the offense was said to have been committed, and there were no horse tracks there; while the female alleged to have been raped will testify that her horse was led up to the place where she alleges the offense to have been committed." That the girl was riding along the road is not denied, but shown by all the witnesses testifying in this regard. It was clearly proved by various witnesses that the ground at the place pointed out by the prosecutrix showed signs of a scuffle; the impress of knees were found there, as well as prints of the toes of shoes; and that the horse tracks led from the road to or near the scene of the scuffle. This was within fifteen or twenty steps of the road, behind some bushes. The girl was bleeding from her private parts, her dress and other clothing torn, and her undergarments were bloody. This being the consummated offense of rape, and the girl being under the age of 12 years, the question of consent is not an element of the crime. The facts introduced in evidence exclude the probability of the truthfulness of Wren's testimony, even if he were to testify as alleged.

The criticism that the charge required the jury to find affirmatively that defendant did not have carnal intercourse with the prosecutrix before they could consider the question of assault with intent to rape is not sustained by an inspection of that instrument. This criticism is hypercritical when the charge is viewed as a whole. The instructions criticised are as follows: "But if you should find that defendant did not, as alleged, have carnal knowledge of the said Mary Washington by actual penetration, but should believe from the evidence beyond a reasonable doubt that in the county of Gillespie, said State, at or about the time charged in the indictment, the defendant did make an assault upon the said Mary Washington with intent to commit the crime of rape — that is, with intent to have carnal knowledge of the said Mary Washington — and that said Mary Washington at said time was a female under the age of 12 years * * *; if you believe beyond a reasonable doubt that defendant is guilty of either rape or assault with intent to rape, but have a reasonable doubt as to whether he is guilty of one or the other of these offenses, then you will give him the benefit of the doubt, and not find him guilty of a higher grade of offense than an assault with intent to rape. * * * And if you do not find the defendant guilty of either rape or an assault with intent to rape, you must acquit him." Then follows the charge upon presumption of innocence, and a general charge upon reasonable doubt. The latter is as follows: "If, therefore, after considering all the evidence before you, and the law as given you in the foregoing instructions, you should have a reasonable doubt of the defendant's guilt of any offense, you will give him the benefit of such doubt, and acquit him." In submitting the issue of rape, the court correctly applied in that connection the law in regard to reasonable doubt. No exceptions were reserved as to the charge of the court in any respect. The court clearly charged the law of reasonable doubt with reference to the consummated crime of rape; therefore the rule as to the burden of proof was not shifted from the State to the defendant under the instructions criticised. Passing from this phase of the case, the court charged the jury, that if the appellant did not have carnal knowledge of the girl they could then consider whether there was an assault made with intent to commit the crime of rape; and in submitting this issue the law of reasonable doubt was again applied; and finally, the court gave in charge the reasonable doubt as applicable to the whole case. Not only so, but this doctrine was applied in the instructions as between the two degrees — rape, and assault with intent to rape. The charge as given did not cast the burden of proof on the appellant, nor reverse the rule as to reasonable doubt. We are unable to see how the jury were, or could have been, misled by the charge given. The facts did not raise the issue of the minor offense, in our opinion, and if they did, it was so remotely done as to be hardly appreciable; therefore the instructions in this respect were favorable to the defendant. No question is raised, however, upon this phase of the charge.

Appellant, upon being upbraided for his mistreatment of the girl, denied it, and stated he only stopped her to examine the bridle on her horse. Such was the evidence for the State. This he denied saying, while testifying in his own behalf, and also denied, as a matter of fact, that he stopped the girl or examined the bridle. In this connection he requested the court to instruct the jury that "* * * such statement, if reasonably consistent and not contradictory, must be taken as true, unless disproved by the evidence by the State." This charge was refused, and very correctly. The proposition asserted in the instructions makes the entire case turn and depend upon the single circumstance contained in and arising out of appellant's statement as imputed to him, and which is denied by him. If the proposition be correct, the State would be enabled to secure a conviction by simply disproving the imputed statements, for the final analysis of the proposition must end just here. A conviction can not be had in this State unless the guilt of the accused is proved beyond a reasonable doubt, by legal and competent evidence. His guilt or innocence is not made dependent entirely upon his own bare statement, exculpating or inculpating himself of the alleged crime. There may be many other facts, and circumstances much more weighty, attendant on the transaction. If the imputed statement be shown false, the converse of the proposition contained in the charge would justify a conviction. The statement itself may be falsely imputed to him, unless the absolute truthfulness of the witness detailing it be admitted. Again, the exculpatory statement is but a circumstance to be weighed with the other facts, and guilt may be completely shown without the State offering any evidence in relation to such statement. Pollard v. The State, ante, p. 197; Johnson v. The Commonwealth (Ky.), 15 So. W. Rep., 671.

The testimony sustains the conviction, if the State's evidence be true. The jury believed it. That there was a conflict on this phase of the case does not authorize us to disturb the verdict, when the evidence for the State supports it.

Affirmed.

Judges all present and concurring.