Ayres v. State , 104 Tex. Crim. 329 ( 1926 )

In our original opinion in this case we seem clearly to have overlooked one of the most important and perhaps the controlling question in the case. In passing on the sufficiency of the evidence, we overlooked the fact, in our discussion of the same, that the prosecutrix was more than fifteen years of age and less than eighteen at the time of the alleged offense. If it were important to do so, we might give some reasonable excuse for this error in our original opinion but as was said by Judge Ramsey in Morgan v. State, 117 S.W. 162, "We have no doubt that a court whose principal office it is to point out and correct the errors of others should in all faithfulness and candor acknowledge its own."

We deem it necessary to make the following additional statement of the prosecutrix's testimony. She fixed the date of the alleged offense at Saturday night between May 10 and 17th, 1924. She testified that she, her twelve-year-old sister and her father and mother visited the appellant and his family and spent the night with them. That before retiring for the night they made ice cream and enjoyed a social hour. That she, her twelve-year-old sister and appellant's oldest child retired for the night and were asleep together in the same bed, when the prosecutrix's father and mother and the appellant and his wife also retired for the night. That she and her twelve-year-old sister and appellant's oldest child slept on the same bed and that they all slept in the same bedroom with the appellant and his wife and within six feet of the bed on which they slept. She further testified that her father and mother slept in an adjoining room in less than ten feet of the prosecutrix, and in plain view of her, there being an open door without a shutter between, and she further testified that her father and mother, or either of them, could have seen her at all times had they been awake. After all had retired for the night she testified that the appellant left the bed of his wife and child and came to her bed and had sexual intercourse with her in the same room where his wife was, and in plain view of the father and mother of the prosecutrix if they were awake.

Appellant sets out the following testimony of the prosecutrix in his motion which we quote:

"My father and mother were in the adjoining room with a door there without a shutter and I guess all they would have had to have done would have been to look to have seen us, if they had wanted to look. I had gone to sleep when he came to my bed and awoke me. He layed his hand on my forehead and called me, and it awoke me. He would have awakened me had he not called me. I don't know whether his wife was awake or not. My little sister did not wake. Rebb Ayres' little girl was there and she did not wake. My father and mother were there and they did not awake. Don't you reckon if anybody got down and whispered in your ear and layed their hand on your head, it would wake you up? He said he wanted to talk to me, and I told him I did not want him to. He whispered to me and I whispered back. I told you what was the first thing he said to me. He called me and said he wanted to talk to me. I next told him I did not want to talk to him. I did not like him. I did not love him. Why didn't I scream or holler for help? Yes, my father was not ten feet from me, still I did not call for help. Had I called for help I did not know what would have taken place. Yes, I whispered back to him and told him to go away; he did not go away. Why didn't I scream? Why didn't I do lots of things? When I told him to go away he said he would not do it. He whispered to me. No sir, I did not have any trouble hearing him. He was right over me. The little girl did not wake up. I tried to push him off the bed — could I have pushed him off? Those little girls did not wake up. When he said he was not going away I kept telling him to get up and go on, I did not want him to fool with me. I did not count the times I told him. I told him to go away a good many times. Several minutes elapsed during that time. If anyone awoke they did not let themselves he known. All his wife would have had to have done would have been to open her eyes and she could have seen us. Yes, I was doing this with a woman's husband within six feet of her and I was afraid all the time I was doing it. No, I did not scream. No, that did not suit me at all. I did not want it to happen. What was the next thing said there on the pallet when I told him to go away — he said he would lay there and talk to me, he then got on the edge of the bed. There were then four in the bed; it did not awaken anyone. He said he was going to talk to me and I told him I did not want to talk to him, but he jabbered a long time. Yes, he whispered all the time. Yes, I whispered, too. Neither of us got our voice out of a whisper. He talked about first one thing and another until he began talking about something he should not have talked about. He did not talk about current events. He was on the bed just a little bit before he began talking about something he should not have talked about. My father and mother did not awaken until the next morning. Rebb Ayres asked me if I had ever done anything ugly, and I told him no, that I did not know what he meant. Well, he could show me better than he could tell me. I told him I did not want him to show me, to go away and leave me alone. I told you that he whispered all the time. He had his left hand between he and I and had his right hand on my shoulder, he raised my leg up and put it on his. That did not awaken the children. I do not know whether it crowded them at all or not. I did not ask them. I mean to say that we had sexual intercourse there. I never did holler. I did not call for help, if anyone awoke they kept themselves quiet. When Rebb Ayres got back in his bed I was afraid to run to my father and say anything. I stayed there that night."

The prosecutrix's testimony further shows that after the defendant returned to his bed there was no outcry made, and she never disclosed what he had done to her to anyone until she was about seven months' pregnancy and her condition plainly visible. The record further discloses that the entire family remained at appellant's house all night, ate breakfast there the next morning and stayed most of the next day. The testimony of this witness was contradicted in toto by that offered by the appellant. Art. 1183, 1925 Revision of the P. C. defines the offense of rape and makes the carnal knowledge of a female under the age of eighteen years other than the wife of the person with or without her consent and with or without the use of force, threats or fraud rape. But said article further provides that if the prosecutrix is fifteen years of age or over, the defendant may show in consent cases that she was not of previous chaste character as a defense.

In our original opinion we refused to disturb the verdict of the jury in this case on the ground that we would not say as a matter of law that the evidence was not sufficient to show that the act of intercourse actually took place as testified to by the prosecutrix, but in view of the last section of the statute above referred to which makes a lack of chastity a defense in view of the age of prosecutrix in this case we cannot say that the verdict of the jury comports with human experience. We think it absolutely incredible that a chaste woman could have had intercourse with the appellant under the circumstances detailed by the prosecutrix. A lewd, experienced woman might have done so but we refuse to lend our sanction to the conclusion that a virgin could have been deflowered under the circumstances detailed by the prosecutrix in this case. "It staggers credulity" and does not comport with human experience. On fact questions, authorities are of but little value, but we cite the following as tending to support the conclusion reached in this case. Donoghue v. State, 79 S.W. 309. Adkins v. State,65 S.W. 924. Key v. State, 65 S.W. 517. Arnett v. State,51 S.W. 385. Gonzales v. State, 25 S.W. 78. Draper v State, 57 S.W. 655. Topolanck v. State,40 Tex. 160. Alcorn v. State, 94 S.W. 468.

Believing that the evidence is insufficient to support the verdict appellant's motion for rehearing is granted and the judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.