Davis v. State
| Decision Date | 01 January 1875 |
| Citation | 43 Tex. 189 |
| Court | Texas Supreme Court |
| Parties | ANDREW DAVIS v. THE STATE. |
OPINION TEXT STARTS HERE
APPEAL from Washington. Tried below before the Hon. I. B. McFarland. The facts sufficiently appear in the opinion.
No brief for appellant.
George Clark, Attorney General, for the State.
Appellant was indicted, charged with having on the 14th of July, 1874, in Washington county, committed the crime of rape. The trial resulted in the following verdict: “We, the jury, find the defendant guilty as charged in the indictment, and assess the punishment to be death by hanging.”
The case is before us on the grounds set forth in the motion for a new trial, and the exceptions taken during the trial to the form of the questions put to the principal witness for the State, and the alleged errors in the charge given and instructions asked by defendant and refused.
The four questions asked by the district attorney and excepted to by defendant were, in their terms and in substance, as leading as it was possible to make them. The simple answer to each of these questions of yes or no by the witness proved defendant's guilt or declared his innocence. The questions suggested to a person of the lowest capacity the answers desired. As such, these questions should not have been permitted to be put to the witness, and the court should have sustained the objections to them. While a large discretion is necessarily vested in the presiding judge relative to the form of questions or the mode of interrogating a witness under a peculiar state of feelings, intellect, or information, yet to justify or sanction a departure from the established rules of evidence to so great a degree, and on matters of vital interest to the accused, as was permitted in this case, the explanation or statement of the reason for such departure should be shown in connection with the bill of exceptions taken. No reason is stated in the record.
The exception to the charge is to the following section: While this portion of the charge gave, in substance, to the jury the law of the case, we believe it failed to place before the jury the main fact to be determined by them in that direct and clear manner which the rights of the defendant demanded, and may have led to the misconstruction of the charge by the jury, which defendant's counsel, on the hearing of the motion for a new trial, offered to prove by the affidavits of several jurors.
The instruction asked on behalf of defendant and refused was, “that the burden of proof is on the State, and the State must prove penetration beyond a reasonable doubt before the jury can find the defendant guilty...
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State v. Wilson
...the elements of carnal knowledge. In this, we think, there was error. It was held in State vs. Grubb, 55 Kan. 678, 41 P. 951, and Davis vs. State, 43 Tex. 189, that where it became question of doubt, in a case of rape, as to whether or not penetration was accomplished, an instruction asked ......
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Nilsson v. State
...v. State, 139 Tex.Cr.R. 532, 141 S.W.2d 345; Watkins v. State, 78 Tex.Cr.R. 65, 180 S.W. 116; Baldwin v. State, 15 Tex.App. 275; Davis v. State, 43 Tex. 189. Penetration may be proved by circumstantial evidence. e.g. Preston v. State, 157 Tex.Cr.R. 228, 242 S.W.2d 436; Vasquez v. State, 145......
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Johnson v. State, 42432
...upon a trial for rape, and a conviction for rape will not be sustained if penetration is not proved beyond a reasonable doubt. Davis v. State, 43 Tex. 189; Baldwin v. State, 15 Tex.App. 275; Elam v. State, Tex.Cr.App., 20 S.W. 710; Blair v State, Tex.Cr.App., 56 S.W. 622; Duckworth v. State......
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State v. De Witt
...these words as equivalent to and interchangeable with sexual intercourse. Nothing in State v. Grubb, 55 Kan. 678, 41 P. 951, and Davis v. State, 43 Tex. 189, militates against conclusion on this point. In each of those cases the court was discussing the absence of proof of actual coition an......