Cone v. State

Willson, J.

This appeal is from a judgment of conviction of the crime of rape, the penalty assessed against the defendant being death. We have not had the benefit of a brief or argument in the case in behalf of the defendant, but we have cautiously, and we think thoroughly, examined the record, and duly investigated and considered every question presented by it.

No exceptions were taken to the sufficiency of the indictment, and none could be successfully urged to it, because it is in every essential valid.

Defendant presented an application for a continuance of the cause, which was by the court overruled, but the record contains no bill of exceptions to this action of the court, and without a bill of exceptions in the record the refusal of a continuance will not be revised by this court. (Taylor v. The State, 12 Texas Ct. App., 489; Delphino v. The State, 11 Texas Ct. App., 30; Gaston v, The State, Id., 143; Hollis v. The State, 9 Texas Ct. App., 643; Clark’s Crim. Laws, p. 474, note “District Court;” Bule 55a.)

We think the charge of the court is unexceptionable, and it was not excepted to. It presents the law applicable to the evidence in a full, explicit manner, and as favorably to the defendant as was demanded by the testimony. Defendant’s counsel asked but a single charge, which was refused by the court. It was as follows: “The evidence for the state must exclude every other hypothesis but that of the prisoner’s guilt, and unless it is so conclusive you shall find defendant not guilty.” This, or a similar charge, would have been required if the evidence of defendant’s guilt had been entirely circumstantial, but such was not the defendant’s case. His guilt was established by direct and positive evidence, as much so as it is possible for human evidence to be. In his general charge, the learned judge instructed the jury that the law presumed the defendant to be innocent until his guilt was established to their satisfaction beyond any reasonable doubt, and that unless the evidence so satisfied them they must acquit the defendant. This, we think, was as much upon this branch of the case as the defendant was entitled to, and, under the facts, it certainly would have been error for the cotirt to have given the jury the special charge requested by defendant’s counsel.

In conclusion, we can say that, after a careful examination of the evidence as presented by the record, we think it fully supports the verdict of the jury, and justified the infliction upon the defendant of the extreme penalty of the law. It appears conclusively from the evidence that he brutally assaulted a married woman in her own house, during the absence of her husband, and when there was no protection near, and by beating her over the head with dangerous instruments, and by means of his superior physical strength, he finally succeeded in accomplishing his fiendish purpose, which was the ravishment of this unprotected woman. While by this conviction he has been adjudged to pay with his life the penalty of his heinous offense, we do not hesitate to say that in our judgment he has had a fair and impartial trial in accordance with all the forms of the law, and that, as far as it is apparent to our finite minds, he justly deserves to die for his high crime.

The judgment of the court below is in all things affirmed.

Affirmed.

Opinion delivered February 17, 1883.