Duncan v. State

• Decision Date: 30 January 1924
• Docket Number: (No. 8002.)
• Citation: 258 S.W. 182
• Parties: DUNCAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 182

258 S.W. 182

DUNCAN v. STATE.

(No. 8002.)

Court of Criminal Appeals of Texas.

January 30, 1924.

Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.

Ralph Duncan was convicted of statutory rape, and he appeals. Reversed and remanded.

Mays & Mays, of Fort Worth, for appellant.

R. K. Hanger, Cr. Dist. Atty., and Jesse M. Brown, Special Prosecutor, both of Fort Worth, and Tom Garrard, State's Atty., of Midland, and Grover C. Morris, Asst. State's Atty., of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of rape, and his punishment fixed at 11 years in the penitentiary.

The conviction was for statutory rape of a girl 13 years old who lived in Fort Worth. On the night of December 8, 1922, she went with her 16 year old brother to a party at the home of T. M. Mirike, seven or eight miles west of the city, and there met appellant and Curley Owens, both of whom had gone out to the affair in a Hup roadster. When the party broke up, prosecutrix went back to town with the two boys in their car. Her story is that when they reached her home in the southern part of Fort Worth her brother had not gotten there and they drove some two blocks south, Owens driving, then stopped the car and assaulted her. She says that both boys got out and that appellant caught hold of her and pulled her down on the seat under the steering wheel and in this position while appellant held her hands and placed one of his hands over her mouth, Owens put one of her feet on the back of the seat and one on the floor of the car and had intercourse with her. She swore that he unfastened and took off her bloomers, got on top of her, and put his private parts into hers, penetrating her several inches. She said she could not kick nor halloo. When Owens got through, she said he got off and out of the car and went around to where appellant was and took hold of her hands and held her while appellant had intercourse with her. She also swore that this was her first experience of this nature and that it hurt her. She said they all then got into the car, and appellant cranked it and they drove her back to her home. About two minutes after she got there her brother came and the two went in the house together. She said nothing to her brother about what had taken place, nor to her mother, who was awake and talked to them. The mother swore that the next morning she went into the room where prosecutrix slept, turned the cover off the girl and observed the absence of her bloomers, which witness said the girl always slept in. This latter fact was contradicted by prosecutrix, who swore that she never slept in her bloomers. Anyway the bloomers were gone and the mother asked prosecutrix where the bloomers were, and she replied, "They are somewhere." This alleged rape was on Friday night. On Sunday following the mother was informed for the first time that prosecutrix had not come home with her brother. She says she then whipped prosecutrix and afterward examined her clothing and found some small spots of blood on the rear part of the underskirt. She questioned prosecutrix as to the conduct of the boys with whom she came home, but got no satisfaction. Thursday she took prosecutrix to the office of Dr. Lowry, who also testified. He said that he declined to examine the girl, because she told him the young men did nothing to her. The mother again took the girl on Saturday to where she was examined by three physicians. These three doctors all testified that she had been penetrated at some time and that they found her unusually well developed; that her private parts were large enough to permit intercourse without any trouble or apparent pain. Each of these gentlemen testified on cross-examination in substance as did Dr. Braswell when he said: "The fact of her development and condition would be at least an indication of frequent intercourse."

Appellant testified and denied intercourse with prosecutrix, but said that when they reached her home her brother had not come and she said her mother might whip her if she went in without her brother, and that she suggested that they drive around until he came. Appellant testified that they drove around the block several times, and then prosecutrix said, "You have to work, and I will get out and wait on the porch for him." That Owens asked her for her telephone number, which she gave him, and that they then took their departure. He said that Owens later called the girl over the telephone in his hearing and had a conversation with her. Prosecutrix also testified that she gave Owens her telephone number and that he later called her and talked to her. Appellant further testified that he saw nothing out of the way about the girl and that they treated her with absolute curtesy and propriety. On Monday after the alleged rape appellant said he learned from a man named Ross that the girl was charging them with raping her. They were arrested on Saturday following this Monday. A number of witnesses testified to the good reputation of appellant. The fact was in testimony that there were arc lights at the street crossings at or about the block where the alleged rape took place; also that there were residences near by.

Complaint is made of the refusal of a new trial because of newly discovered evidence. Affidavits were appended to the motion, and, when same was presented, evidence was heard by the learned trial judge. Lavada Moser swore that she was present when Owens was tried immediately following the trial of appellant, and that she heard the assistant district attorney in his closing argument in the Owens case refer to the missing bloomers and to the supposed fact that one of the defendants had them. She said that she was at the party at Mr. Mirike's, and when she...