Higgins v. State, (No. 5824.)

• Decision Date: 26 May 1920
• Docket Number: (No. 5824.)
• Citation: 222 S.W. 241
• Parties: HIGGINS v. STATE.
• Court: Texas Court of Criminal Appeals

222 S.W. 241

HIGGINS v. STATE.

(No. 5824.)

Court of Criminal Appeals of Texas.

May 26, 1920.

Appeal from District Court, Hall County; J. A. Nabers, Judge.

J. R. Higgins was convicted for rape, and appeals. Reversed.

A. T. Cole, of Clarendon, and R. H. Templeton, of Wellington, for appellant.

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

MORROW, J.

The conviction is for rape, with punishment fixed at confinement in the penitentiary for 15 years.

The subject of the rape was the daughter of appellant, under 18 years of age. At the time of the trial, she and her younger sister were married women. The prosecutrix testified to the act of intercourse, claiming that it took place on the 2d day of July, while she and her sister were in bed together. She claimed to have been unwilling, and to have made some resistance. The conviction, however, is upon the theory of her consent. The sufficiency of the evidence is assailed, the circumstances, including a motive for fabrication on the part of the prosecutrix and her sister and the denial of the act by the appellant, are pointed out. We deem it unnecessary to discuss the facts further than to say that the definite testiony of the prosecutrix to the offense is not overcome, as a matter of law. It was the duty of the trial court to submit the issue to the jury, and the duty of this court under the facts, so far as the question of the sufficiency of the evidence is concerned, to uphold it.

The state introduced, over the objection of the appellant, the evidence of the sister of the prosecutrix that on the 7th day of September, following the alleged offense, the appellant made an indecent assault upon her. The state attempts to justify the admission of this evidence upon the theory that it was the proper rebuttal of evidence introduced by the appellant showing his physical condition. The evidence of his physical condition was that of the doctor, who testified that he had examined the appellant shortly before the 2d of July, and that at that time he was suffering from certain ailments which rendered it not impossible, but improbable, that he would have a desire for sexual intercourse. As we understand the record, the ailments of which he was complaining were not of a permanent nature. The doctor had made no further examination of them prior to the date upon which the assault upon the sister of the prosecutrix was made. There is evidence that in the meantime his physical condition had improved; in fact, the...