Ham v. State
| Decision Date | 10 February 1904 |
| Citation | 78 S.W. 929 |
| Parties | HAM v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Grayson County; Rice Maxey, Judge.
John Ham was convicted of rape, and appeals. Affirmed.
Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 10 years.
He complains that the court erred in permitting prosecutrix, who was only 11 years of age, to testify as a witness; his insistence being that she was not of sufficient intelligence to understand the nature and obligations of an oath. This matter is presented by two bills of exceptions, neither of which show the testimony of prosecutrix. We cannot review the bills in the absence of her testimony. However, the matter of the competency of the witness was within the sound discretion of the trial judge, and we cannot say, even waiving the defect in the bill cited, that he abused his discretion.
Bill No. 2 complains of the court permitting state's counsel to ask prosecutrix leading questions. This bill has the same defects as the other bills, in that it fails to show the answer given by witness. The court states, however, that prosecutrix was a child, very timid, and seemed very much embarrassed when interrogated. Under circumstances of this character, we will not reverse a case for the asking of leading questions, unless there is a clear injury shown to the rights of appellant.
Appellant also insists that the court erred in permitting Dr. Freeman to testify after the state and defendant had closed their testimony. It is within the discretion of the court to permit the introduction of testimony at any time before the argument is closed. The explanation of the court to the bill shows that no injury was wrought to the rights of appellant.
Appellant's last insistence is that the evidence is insufficient to support the verdict. The evidence of the prosecutrix alone is not sufficient. However, we take it that the evidence of the father, in connection with appellant's confession and the testimony of the physician who examined the private parts of prosecutrix, is sufficient to show penetration.
No error appearing in the record, the judgment is affirmed.
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