Cokeley v. State

• Citation: 220 S.W. 1099
• Decision Date: 21 April 1920
• Docket Number: (No. 5485.)
• Parties: COKELEY v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

220 S.W. 1099

COKELEY v. STATE.

(No. 5485.)

Court of Criminal Appeals of Texas.

April 21, 1920.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

John Cokeley was convicted of rape, and appeals. Reversed, and cause remanded.

V. L. Shurtleff, of Waco, for appellant.

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

DAVIDSON, P. J.

This conviction was for rape with a life sentence imposed.

The indictment charges that rape was committed upon a mentally unsound woman, and this by appropriate averments. To meet this it was requisite for the state to show: First, the act of intercourse by appellant; and, second, that prosecutrix was mentally unsound at the time. If the state failed to prove either fact beyond a reasonable doubt, an acquittal should result. The evidence, therefore, must show that prosecutrix was mentally unsound, and that she had intercourse with defendant. If she was not mentally unsound, the state failed in its proof; for it alleged no other ground for rape. Being insane, the woman could not testify. The law rendered her incompetent as a witness, and this by legislative action. See article 788, C. C. P.; Branch's Crim. Law, § 701, for cited cases; Lee v. State, 43 Tex. Cr. R. 288, 64 S. W. 1047; Batterton v. State, 52 Tex. Cr. R. 383, 107 S. W. 826; Lopez v. State, 30 Tex. App. 487, 17 S. W. 1058, 28 Am. St. Rep. 935. The state therefore did not undertake to use her as a witness, but relied upon such facts and circumstances as could be gathered. Had she been permitted to testify, it would have been on theory that she was a competent witness and would not have been insane under the statute as shown by the authorities above cited.

To prove its case, the state introduced the confession of appellant. In this confession he admits and states that he had intercourse with the prosecutrix with her consent, if not at her solicitation and instigation. Conceding, so far as to what we have to say here, that this confession was properly admitted, and without discussing the surrounding circumstances attending the confession, and taking it in its fullest force, it cannot be held to prove the corpus delicti. This is so by the authorities. See 2 Branch, Ann. P. C pp. 1049 and 1050, for collation of cases. This is so well recognized now as not to require further notice or discussion. It has been decided in recent years and seems now to be a fairly recognized rule that the confession may be used to aid in proving the corpus delicti, subject, however, to the above statement that it cannot of itself prove the corpus delicti. Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Fredrickson v. State, 44 Tex. Cr. R. 288, 70 S. W. 754; Austin v. State, 51 Tex. Cr. R. 328, 101 S. W. 1162; 68 L. R. A. 70. Unless there were facts and circumstances independent of the confession which showed the intercourse of appellant with prosecutrix, the confession would not be sufficient. We have read this record with a great deal of interest to ascertain if there were facts and circumstances that would justify this court in finding the confession corroborated or the corpus delicti proved with the aid of the confession, but have reached the conclusion that the record does not so show.

The husband of the prosecutrix testified that he had seen defendant at his house on one occasion when he was at work in a field near by; that on another occasion he and some gentleman who accompanied him came to his house and found defendant there, but he does not show any intimacy that would show the fact of intercourse. His testimony excludes the idea that appellant was afraid of being found at the residence, because his testimony makes it apparent that appellant knew or could have known that he saw him from the field and did know of his presence at the house at the time he was there. There is testimony to the effect that when the officers went to arrest appellant, or rather while they were searching for him, they approached the house where he was and he walked away. The theory of this was that he was seeking to avoid an arrest. This is a disputed issue, but appellant being a negro and prosecutrix a white woman, it would not be going far afield of this record to state that, if he was aware of the fact they had a charge against him for having intercourse with the woman, she being a white woman, it might be wisdom on his part not to fall into the hands of a crowd of white men, but we regard that as not being proof of intercourse. There must be some tangible evidence that he had intercourse with the woman. The statements and confession of defendant were introduced by the state, and therefore binding upon it unless...