Tennison v. State , 126 Tex. Crim. 140 ( 1934 )

ON MOTION FOR REHEARING.

LATTIMORE, Judge. —

Slight misstatements of immaterial matters in our original opinion, do not call for the granting of the rehearing.

We are still of opinion the testimony is sufficient to support the verdict. The averment in the indictment was of rape by force and threats. Proof that it was accomplished by either, would suffice. The girl swore to a rape by force and threats. The negro driver of appellant’s car swore to facts showing both force and threats. In addition to what is set out in our original opinion of the testimony of said negro, we further note that he said: “This girl got behind me, and I tried to keep him off of her, and so I stepped aside and he grabbed her. * * * I am positive he had a crank in his hands. * * * I told him several times not to do that, not to hit the girl. He said he was going to knock her unconscious.” This witness testified that he heard prosecutrix screaming and calling pitifully to him for help after appellant had ordered him away from the scene, and had drawn -a car crank on him with a threat as to what would happen if witness did not leave.

This court never has and can not in the very nature of things, lay down any rule requiring bruises, lacerations or wounds to be shown as necessary in order to substantiate a claim of force in the accomplishment of rape, — and certainly this must be kept in mind and be true when threats are alleged and proved as part of the accomplishment. This record evidences beyond question both force and threats accompanied by outcry; also immediate complaint when prosecutrix reached her home, followed by speedy arrest. Appellant himself testified: “I was arrested inside of thirty minutes.” One of appellant’s witnesses, a negro boy who was picked up by appellant after the alleged rape, — testified that when the girl got out of the car at her home appellant asked her when he could come back, and she said “Never come back here again. You had better get away from here as quick as possible.”

We have again examined each of appellant’s bills of exception and find in none of them any error presented. Appellant’s insistence upon a trial when had, seems to have made necessary reception of the testimony of prosecutrix from a cot. Nothing in the record suggests that the illness making this necessary was attributable to the assault made by appellant. The alleged assault was in May; the trial in July. Other testimony showed that after the assault prosecutrix was up and about. We see no error in the rejection of the special charge asked by appellant instructing the jury not to be influenced by the fact that the witness gave testimony lying on a cot. A precedent such as is here sought to be established would require the giving of such instruction when any crippled witness gave testimony, or a witness suffering in any degree or in any stage from illness or injury, no matter what the cause.

The motion for rehearing will be overruled.

Overruled.