Austin v. State

• Decision Date: 10 April 1907
• Citation: 101 S.W. 1162
• Parties: AUSTIN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1162

101 S.W. 1162

AUSTIN v. STATE.

Court of Criminal Appeals of Texas.

April 10, 1907.

Appeal from District Court, Cass County; P. A. Turner, Judge.

George Austin was convicted of rape, and appeals. Reversed and remanded.

Hill, Stewart & Hart and Mahaffey & Thomas, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at 10 years' confinement in the penitentiary, and prosecutes this appeal.

The facts show that the prosecutrix was 14 years of age, and lived with her father, who was a negro, on a rented place in Cass county. The appellant lived on the same place. On the 9th of April, 1906, prosecutrix, without the consent of her father, ran away with appellant. On the night of the 9th of April prosecutrix and appellant stayed at the house of a negro in Cass county, occupying the same room and bed. The negro with whom they stayed believed them man and wife. Subsequently they went to Red River county, and about the 8th of May were married in the last-named county. On the 18th of May appellant was arrested, charged with this offense. The only proof the state had of the alleged rape was that the prosecutrix and appellant slept together as man and wife at the house of the witness Dock Finley, and that on the subsequent trial appellant testified that he had carnal intercourse with prosecutrix that night. In addition to this it was shown prosecutrix was not in attendance on court at the trial, which occurred on the 12th and 13th of February, 1907; that she was then pregnant and expecting to be confined any day, and was consequently unable to attend. Appellant insists that this is not sufficient evidence of the corpus delicti. We do not agree with this contention. The corpus delicti can be established, not by confessions alone, but by confessions in connection with other facts and circumstances. Here the circumstances relied on, in addition to appellant's confession, was that the parties, prosecutrix and appellant, slept together in Cass county on the night of the 9th of April, 1906, as man and wife; that they were subsequently married; and that at the term of court, when the trial took place, which was within three or four days of the nine months allowed for gestation, she was then in an advanced state of pregnancy, and expecting to be confined on any day. We think this is sufficient evidence to establish the corpus delicti. See Fredrickson v. State, 44 Tex. Cr. R. 288, 70 S. W. 754; Gray v. State, 44 Tex. Cr. R. 478, 72 S. W. 858; and Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989.

Appellant also contends that the charge of the court on corpus delicti is a charge on the weight of the evidence. We do not think so. The jury were distinctly told that the confession alone was not sufficient to prove carnal knowledge by defendant of Louida Allen. They were then instructed if they believed from the evidence that the defendant admitted or confessed that he had carnal knowledge of Louida Allen, and if they further believed such...