Petty v. State , 94 Tex. Crim. 114 ( 1922 )

The subject of the alleged rape was Minnie Bryant, a girl under the age of fifteen years.

To prove the act of intercourse upon which the prosecution is founded, the State relied upon the testimony of one McCaulley. From his testimony it appears that he owned a meat market and that on various occasions he had seen the appellant and the girl in question meet on the street at a point near the market; that he had seen them having these meetings for two or three weeks; that appellant would be driving an automobile on these occasions and a number of times he had seen her get into the car and ride with the appellant, that on other occasions he had met the appellant and the girl while they were riding on the road; that he had seen them some five or six times as he went back and forth; that on or about the 13th of September, he saw them in the automobile close to the slaughterhouse across the T. . B.V. Railroad tracks, about a hundred yards. They were on the back seat "loving" one another; that he then saw her lie down on the seat; that he apparently saw her unfasten her supporters and lie down on the seat, and saw the appellant open his trousers, and saw him on top of her; that he could see their motions; that when they got through, they took a handkerchief and dried themselves off and threw it out of the car; that the automobile was standing near a slaughter-pen.

A doctor testified that he had made an examination of the vagina of the girl and found the parts in a condition indicating that she had had intercourse a number of times with some one; that is, that the vagina was in a condition which indicated that some object had passed into it a number of times; that he could not say that it was a male organ; and could not say that it was not due to masturbation. Another doctor testified to a similar state of facts.

Appellant testified that he had been riding with the girl on one occasion; that she had requested him to let her ride in his car. He denied having had improper relations with her.

The prosecutrix was introduced in rebuttal and testified that she had been out riding with the appellant a number of times; that he had kissed her on a number of occasions. That part of her testimony directly relating to the offense in question is as follows:

A. Well, I guess he was trying to have intercourse. Q. Don't you know? A. Well, yes. Q. What was he trying to do? A. To have intercourse. Q. What was he doing? A. Well, I said he was trying to have intercourse; but he didn't. Q. He did not? A. No, sir. Q. Did he have his arms around you then? A. No, sir. Q. When you met him at McCaulley's place of business down here at Kaufman and East Main, would he always bring you back there? A. Yes, sir. Q. When you met him at the post office, would he always bring you back to the post office? A. Yes, sir. Q. Would you always meet him first at McCaulley's when you went riding with him? A. Yes, sir. Q. At the time you say he was trying to have intercourse with you, was that with your consent? A. Well, yes.

That State relied upon the theory that the offense was committed at the place described by her and the witness McCaulley. The witness, Minnie Bryant, testified that she had been riding with appellant quite a number of times; that she had met him as testified by the witness on several occasions and had ridden in his car. The State then categorically inquired of her whether she had been at the point between the T. B.V. Railroad and the slaughter-house described by the witness McCaulley. To this she replied that she had been there one time and only one time. The reading of her testimony leaves no doubt in the mind of the writer that the occasion to which she adverted is the one upon which the State relied. The writer is unable to reach any conclusion other than that stated, that is, that she and McCaulley testified to the same transaction. The State's witness, the alleged injured party, not only denied the acts of intercourse but testified to a state of facts which are not inconsistent with the circumstances detailed by the other State witnesses, but are consistent with the innocence of the appellant of the offense charged.

If the conviction was for the offense of assault to rape, the evidence would support the conviction, but to constitute the offense of rape, proof of penetration is absolutely essential. Penal Code, Art. 1067; Branch's Ann. Tex. P.C., Sec. 1803; Duckworth v. State, 42 Tex.Crim. Rep.; Blackmon v. State, 87 Tex.Crim. Rep.. And in the absence of direct evidence of penetration, it may be proved by circumstances. Dies v. State,56 Tex. Crim. 36; Word v. State, 12 Texas Crim. App. 183. But it must be proved beyond a reasonable doubt. Davis v. State,43 Tex. Crim. 189.

In the instant case, the State, in its case, in chief relied upon circumstantial evidence. While the appellant, in rebuttal, introduced nothing more than a denial, the State, apparently not satisfied with the strength of its case, introduced the alleged injured party, and she denied the penetration. She admitted the fondling and the effort on the part of the appellant to have intercourse with her, but she denied the accomplishment of the act. Testifying under the sanction of the State, who introduced her as a witness, she, by her direct evidence, combatted the essential element of the State's case to establish the offense of which the appellant is convicted. This court, in the case of Draper v. State, 57 S.W. Rep. 656, dealing with a case in which the prosecutrix testified to penetration, held the evidence insufficient in view of other facts which were developed by the record and referring to the case of Gazley v. State, 17 Texas Crim. App. 267, stated that all authorities agree that great caution should be exercised in cases of this character. In Blair's case, 56 S.W. Rep. 622, the prosecutrix, a girl under fifteen years of age, testified in the first instance in favor of the theory of the State. She followed this with a denial of the truthfulness of her statement. The court said: "This leaves the record before us in such condition that we cannot permit the verdict to stand without other proof on the question of penetration, which is an absolutely essential requisite to all prosecutions for rape."

In the case of Galaviz v. State, 82 Tex.Crim. Rep., there was a similar state of facts. The prosecutrix testified that there was penetration and then contradicted herself upon this subject. It is, of course, true that, generally speaking, self-contradiction of a witness will not, as a matter of law, destroy his testimony. Hill v. State, 77 S.W. Rep. 808; Blackmon v. State, 87 Tex.Crim. Rep., and authorities therein cited.

The instant case does not rest upon the matter of self-contradiction. The injured party does not admit and then deny the penetration, but her testimony is confined to a specific denial; a definite refusal to admit it. The admission she does make is consistent with the circumstances detailed by the State's witness to the effect that he saw the girl and the appellant in the automobile in the position which he described. All that he said may be true, however, and still there may have been an absence of penetration. He testified to circumstances consistent with the guilt of the appellant, but when taken in connection with the positive denial, through the direct evidence of the injured party, the evidence does not exclude every reasonable hypothesis save that of his guilt.

Upon the record before us, we are of the opinion that the trial court should have granted a new trial. Because of his failure to do so, the motion for rehearing is granted, the affirmance set aside and the judgment is reversed and the cause remanded.

Reversed and remanded.