Blackmon v. State

• Citation: 220 S.W. 93
• Decision Date: 31 March 1920
• Docket Number: (No. 5739.)
• Parties: BLACKMON v. STATE.
• Court: Texas Court of Criminal Appeals

220 S.W. 93

BLACKMON v. STATE.

(No. 5739.)

Court of Criminal Appeals of Texas.

March 31, 1920.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Zack (Cliff) Blackmon was convicted of rape, and he appeals. Affirmed.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction is for rape, and punishment fixed at confinement in the penitentiary for a period of 15 years.

The sole question is the sufficiency of the evidence. The injured party was Tersa Krencewecz, a child 13 years of age. By election the state relied upon the act of intercourse occurring on the 29th day of May, 1919. The prosecutrix testified:

"I know what intercourse means. He did take out his privates and put it into my little privates. He done me that way about 12 times. Sometimes it would hurt. It hurt me twice it hurt me the last time. He done me that way May 29, 1919."

From other parts of her testimony it appears that the last act was on May 29. Prosecutrix was working for the appellant, and went from her home for that purpose. She said he threw her on the bed, and put his hand over her mouth and said, "Don't holler;" that if she told anybody they would put her in jail and her mother would whip her; that, fearing these things, she did not disclose his conduct. On cross-examination she said:

"Yes; I said he put his male part in my privates. That is true. He did the first time and all the time. He tried lots of times. He did get it in once a little. I don't know how deep, about that deep" — indicating more than half an inch."

She also said:

"He tried to put it in lots of times. Just put it between my legs. He didn't get it in the first time, but put me on the bed and tried to; put it between my legs."

She said on cross-examination:

"I told the justice of the peace that he never did get it in; that he tried to get it in; that he tried to get it in lots of times, and he said if I hollered somebody would hear me. I started to holler, and he put his hand over my mouth."

She said that when she was before the justice of the peace she was scared, and was still afraid. She further testified on redirect examination that he tried to get it in a number of times, but succeeded only one time. She was a Polish girl, and said she did not understand the English language well. The stepfather of the prosecutrix testified that after being arrested the appellant offered to pay $70 to the witness to get a marriage license so he (appellant) could marry the girl and avoid prosecution. There was other evidence that the girl had been about the house of the appellant. Appellant testified, and denied any misconduct towards the girl; also denied the offer to pay her stepfather in order to keep the matter out of court. Appellant was an unmarried man, about 50 years of age.

Bearing in mind the rule under which the testimony of the prosecutrix in a case of rape is scrutinized, with more than ordinary care, we are unable to conclude that in the instant case we would be warranted in overturning the verdict approved by the trial judge. It is true that in her conversation with the justice of the peace the prosecutrix stated that there was no entry into her privates. She was a young girl, a foreigner, her father was dead, and her mother remarried. It was shown without dispute that in her conversation with the justice of the peace she was frightened and crying; that she had previously been told by the appellant that she would be put in jail if she told; that she was afraid her mother would whip her. We gather from the...