Magee v. State

• Decision Date: 27 May 1931
• Docket Number: No. 14180.,14180.
• Parties: MAGEE v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W.2d 53

MAGEE v. STATE.

No. 14180.

Court of Criminal Appeals of Texas.

May 27, 1931.

Commissioners' Decision.

Appeal from District Court, San Saba County; J. H. McLean, Judge.

Noel Magee was convicted of statutory rape, and he appeals.

Reversed and remanded.

J. Mitch Johnson and Carlos C. Ashley, both of San Saba, and J. Edward Johnson, of Brownwood, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

Offense, statutory rape; punishment, five years in the penitentiary.

The evidence shows that the prosecutrix was 16 years of age at the time of the alleged offense. She placed the date of the act of intercourse on May 4, 1929. The evidence shows that she gave birth to a child on the 27th day of February following. She testified that on the day the act of intercourse took place, she came to the town of San Saba in company with the appellant, whom she had known for a period of about three years; that they were accompanied by a sister of the appellant and a sister of hers; that the two other girls got out of the car at San Saba, and she and appellant drove out on the highway; that appellant stopped the car on the side of the highway, and that, while in the front seat of the car, the appellant engaged her in an act of intercourse over her protests and against her will; that appellant first began his importunities by begging her to have intercourse with him and by hugging and kissing her. She denied ever having consented to the act. She testified that this was her first act of intercourse, and that it was accompanied with considerable pain. She also testified that several cars passed by while they were by the side of the road, but that she made no outcry nor did anything to attract the attention of the occupants of the cars. She testified also that the appellant had torn her bloomers off of her; that she did not communicate the fact of his conduct to either of the other girls, whom they met when they returned to town and all of whom returned home in the same car; that she did not communicate the fact to anybody until about the 7th day of December following, when her pregnancy became known by her mother, and she then for the first time told her the fact and said that the appellant was the cause of her condition.

There was testimony to show that the child was a fully developed nine months old child, given by the attending physician.

The appellant denied the act entirely, and denied that he had ever had intercourse with the prosecutrix, but admitted that he had taken her driving on the occasion as stated. He contended, that the time when he and the prosecutrix and his sister and the sister of the prosecutrix came in town together was on the 29th day of June, 1929. Corroborative evidence of the fact that the trip to town was made on the 29th day of June, 1929, was given by several witnesses.

The indictment charged straight statutory rape. It did not charge rape by force.

Several bills of exception relating to the matter of permitting the introduction of subsequent acts of intercourse with other persons than the appellant are presented. The appellant offered to prove that in July, 1929, which was a short time after the date fixed, the prosecutrix was recognzied on the road in company with another man near Corpus Christi; that some parties picked them up, and that she introduced the man with her as her husband, and stated that they were on their way to Mexico; that these parties furnished them a ride into Corpus Christi, and that she and the man...