Bozeman v. State

• Decision Date: 22 May 1895
• Citation: 31 S.W. 389
• Parties: BOZEMAN v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W. 389

BOZEMAN v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1895.

Appeal from district court, Bastrop county; Ed. R. Sinks, Judge.

James Bozeman was convicted of an attempt to commit rape, and appeals. Reversed.

Orgain & Garwood, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant in this case was tried under an indictment charging him with rape, and was convicted of an attempt to rape, and his punishment assessed at two years in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal. It appears from the evidence in this case that on the evening of March 10, 1894, four negroes were riding along the public road from Elgin, in the county of Bastrop, to their homes. About a mile and a half from Elgin, as two of them testify, in a little gulley, a short distance from the road, in plain view, they discovered a man lying on top of a little girl. They passed on, making some remark about it, and, when they had proceeded about 50 yards, they rode back. The man was still on the little girl. They upbraided him for his conduct. He got up off the little girl; buttoned his pants up. The little girl got up; pulled up her drawers. The man, whom they identify as James Bozeman, the defendant in this case, approached them, and an altercation ensued, the defendant cursing and abusing them. One of the parties, Pollard, stated that he would go and report him and have him indicted. The parties separated, three going on towards their homes, and said Pollard going back to Elgin to report the affair; the defendant and the alleged injured party, Beulah Bozeman, his little sister, following on after the three men, going in the direction of his sister-in-law's, which was not far off. This was the state's case. On the part of the defendant, it was shown that the parts of the little girl were thoroughly examined that night, only a few hours after the alleged occurrence, and no wounds, bruises, or abrasions whatever were found on her privates or about them. The defendant himself testified that he was on his way to his sister-in-law's, who on that evening was sick, and had gotten him to go to his mother's, who lived about a mile or a mile and a half distant, to get his little sister to come and take care of her baby; that after getting his little sister Beulah, who was eight years old, while en route back to his sister-in-law's, she had occasion to step aside to answer a call of nature. She went some little distance from the road, and pulled her drawers down, when the negroes came along, and she ran to him, and that this was all that occurred. He denied that he had her down, or that he was on top of her. Beulah, who was also on the stand, agreed with his testimony. The proof showed that the defendant was 19 years old, was about six feet in height, and weighed about 165 pounds; that Beulah was only eight years old, and small for her age. The doctors testified that it was impossible for a man of that size to have penetrated even slightly the...