Moore v. State

Appellant was convicted of rape, and his punishment fixed at confinement in the penitentiary for a term of ninety-nine years, hence this appeal.

Appellant complains of the action of the court overruling his motion for continuance. There is no bill of exceptions to the overruling of said motion, and consequently the same cannot be considered. However, an examination of the motion does not disclose a cause for continuance. Where a trial occurs shortly after the offense was alleged to have been committed, and a few days after indictment found, there might occur equitable causes, outside of the statute, which should induce the court to grant a continuance, but here such a cause is not disclosed. It is stated generally that a continuance was desired to examine into the case, and to ascertain what testimony could be procured for appellant. If in this connection it had been shown that by being hurried into trial appellant was deprived of important testimony, and the nature of that testimony shown, there might be cause for continuance, and on refusal a reversal might ensue. But the application does not show that appellant was deprived of any testimony, or that any testimony has been since discovered that would have been important in his case. Indeed, no facts are stated in connection therewith. Even if a bill of exceptions had been reserved we could not say that the court erred in this regard.

Appellant reserved an exception to the action of the court permitting Suaddie Brown, who was over 9 years of age, to testify against appellant. Since the decision in Freasier v. State, 84 S.W. Rep., 360, the last Legislature has passed an act which authorizes such witness to testify. Of course a child-witness must manifest sufficient intelligence to convince the court that the nature and obligation of the oath administered was understood. It is shown in the bill that the child-witness was examined as to her intelligence, and the court was satisfied that she sufficiently understood and comprehended the nature and obligations of the oath, and permitted her to testify. But the facts developed in said examination in regard to the child's intelligence are not disclosed in the bill. In order to have been a good bill, the facts should have been shown. Of course, in the absence of a showing in the bill itself of the facts attending the examination of the witness, it will be presumed that enough facts were developed to sustain the action of the court regarding the witness being of sufficient intelligence to understand the nature and obligations of the oath.

Appellant complains that there was a failure on the part of the court to charge the law in regard to circumstantial evidence. This was not a case of circumstantial evidence. Prosecutrix, on whom the offense is alleged to have been committed, being present at the time and testified to the facts. Even if it be conceded that she was an accomplice (which under our decisions is not the case) it would still be a case of positive testimony.

It is also strenuously insisted by appellant that the verdict of the jury is excessive. Of course, more outrageous cases of rape are committed than is shown by this testimony, yet prosecutrix at the time was only 9 years old, and she testified to the act of penetration, and other circumstances support her testimony. Though she as well as appellant were evidently a low class of people, still, under the law the amount of punishment was authorized, and we are not prepared to say, under the circumstances of this case, that the jury were not justified in assessing such punishment.

There being no errors in the record, the judgment is affirmed.

Affirmed.

ON REHEARING. March 23, 1906.