Lynch v. State

• Decision Date: 10 June 1925
• Docket Number: (No. 9198.)
• Parties: LYNCH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 271

279 S.W. 271

LYNCH v. STATE.

(No. 9198.)

Court of Criminal Appeals of Texas.

June 10, 1925.

Appeal Reinstated January 13, 1926.

Appeal from District Court, Camp County; R. T. Wilkinson, Judge.

Manuel Lynch was convicted of assault with intent to rape, and he appeals. Reversed and remanded.

C. E. Florence, of Gilmer, for appellant.

Tom Garrard, State's Atty., of Austin, and Grover C. Morris, Asst. State's Atty., of Tyler, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Camp county of assault with intent to rape, and his punishment fixed at three years in the penitentiary.

The recognizance for the appeal appearing in this record is fatally defective, and is in form for an ordinary appearance bond. For lack of proper recognizance the appeal must be dismissed. Our statute, articles 903 and 904 of Vernon's Ann. Code Cr. Proc. 1916, provides the form for a recognizance, and, if same be not made during term time, for the giving of an appeal bond conditioned as therein provided.

The appeal will be dismissed for lack of statutory recognizance.

On Reinstatement of Appeal.

MORROW, P. J.

Upon correction of the record the appeal is reinstated.

The subject of the alleged assault was Christine Ayers, a girl about nine years of age. As we understand the evidence, the little girl's father was plowing in a field consisting of about 15 acres. The prosecutrix and her little brother were walking in company with each other, when, according to the little girl, appellant asked her where she was going, and was told that she was going to the field where her father was working. Appellant caught her by the arm, laid her down, put his hand over her mouth, and told her to hush. He threw her down twice, and the second time he got down on the ground over her. After he got up, and she and her brother went on to the field. She said that appellant did nothing to her clothes; that she saw him do nothing to his own clothes in the way of unbuttoning his pants. He was down over her but a short time; that he did not get down over her the first time, but it was on that occasion that he told her to hush. He told her that he was just playing with her. It appears that he got up of his own accord and went his way, and that she and her brother went into the field where their father was at work. She did not tell her father that anything had happened, but, according to the testimony of the father of the prosecutrix, his children came running to him in the field and seemed somewhat excited. They did not relate anything of the incident to him. According to this witness, the place where the alleged assault occurred was about 250 yards distant from him, near the highway. An examination of the girl showed no disturbance of any of her parts, nor disarrangement of her clothes. No injury was inflicted upon the child. It seems that in the evening the little boy made some reference to the incident at his home, and the questioning of the girl resulted in her relating the incident to the members of the family.

Upon his direct examination the little boy gave testimony from which we quote:

"That fellow threw my sister down two times. It was out in some weeds beside the fence where he threw her down. He just threw (her...