Ex Parte Merrill
| Decision Date | 23 April 1947 |
| Docket Number | No. 23693.,23693. |
| Citation | 201 S.W.2d 232 |
| Parties | Ex parte MERRILL. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; Frank Williford, Jr., Judge.
Habeas corpus proceeding by Edward Merrill seeking bail pending trial under an indictment charging rape by force and violence. From an order denying bail, Edward Merrill appeals.
Reversed and bail granted.
Bennett & Bennett, of Normangee, for appellant.
A. C. Winborn, Cr. Dist. Atty., and E. T. Branch, Asst. Cr. Dist. Atty., both of Houston, and Ernest S. Goens, State's Atty., of Austin, for the State.
Appellant, relator in the court below, stands charged by indictment with the offense of rape by force and violence.
By writ of habeas corpus, he sought bail pending trial. After hearing, bail was denied. From this order this appeal has been perfected.
Prosecutrix, eighteen years of age, testified that appellant at night by the side of a road to which he had driven the automobile in which they were riding, after having struck, beaten, and knocked her to the ground, forcibly raped her. Nearby parties, hearing her screams, went to her aid; officers were summoned. She was carried to a hospital where the scratches and lacerations about her head were dressed. To none of these persons did prosecutrix complain that she had been raped. We quote from her testimony: "When those men came up there I did not tell them that I was criminally assaulted, and when I got to the hospital I did not tell them I had been criminally assaulted because I was among strangers and I didn't want them to know it."
She testified further:
This last statement on the part of the prosecutrix in all probability accounts for the absence of testimony showing that an examination was made of her at the hospital.
As to the fact of the assault, that is, the beating and bruising by the appellant, prosecutrix is abundantly corroborated; as to the fact of rape or penetration, there is no corroboration. Penetration is an essential element of the crime of rape, without which there cannot be rape.
Appellant did not testify, nor did he offer any testimony.
By the provision of Art. 1, Sec. 11, of the Constitution, Vernon's Ann.St., and Art. 5, C.C.P., all cases are bailable unless the proof is evident. An essential element to constitute proof evident, as there used, is that the accused is guilty of the capital offense charged. Branch's P.C., Sec. 224; Ex parte Sapp et al., 77 Tex.Cr. R. 400, 179 S.W. 109; Ex parte Vermillion, 102 Tex.Cr.R. 590, 280 S.W. 771; Ex parte Cantu, 135 Tex.Cr.R. 281, 117 S.W.2d 1102; Ex parte Suger, Tex.Cr.App., 192 S.W.2d 159; Ex parte Kennedy, Tex.Cr.App., 190 S.W.2d 825; Ex parte Pettis, 60 Tex.Cr.R. 288, 131 S.W. 1081.
It is the general rule that in cases of rape by force where...
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Hernandez v. State, 04-81-00053-CR
...lack of an outcry tends to lessen or diminish the credit to be given her testimony. Hindman v. State, supra; Ex parte Merrill, 150 Tex.Cr.R. 365, 201 S.W.2d 232 (1947). The present Article 38.07 accomplishes the same objective, but applies the benefits and disadvantages to all situations al......
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Johnson v. State, 42432
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