McIntyre v. State

• Decision Date: 08 December 1897
• Parties: McINTYRE v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 104

McINTYRE v. STATE.

Court of Criminal Appeals of Texas.

December 8, 1897.

Appeal from district court, Guadalupe county; M. Kennon, Judge.

Indictment of Robert McIntyre for rape. Defendant was convicted, and he appeals. Affirmed.

Mann Trice, for the State.

DAVIDSON, J.

Appellant was charged with rape, in the first count of the indictment, upon a girl under 15 years of age, not being his wife, and, in the second count, with rape by force, and without the consent of the alleged ravished female. On the trial the jury convicted defendant under the second count, and gave him 40 years' confinement in the penitentiary. He filed his motion for a continuance on account of the absence of several witnesses. In his bill of exceptions reserved to the action of the court overruling said application, he mentions three witnesses only,— William Cavel, John Rankin, and Janie Wilcox. By Rankin and Wilcox he expected to prove that the girl was over the age of 15 years; and, further, by Rankin, that he was custodian of the church records, which showed the prosecutrix to be over 15 years of age. This phase of the continuance may be disposed of by the statement that the jury found the girl to be over 15, and convicted defendant of rape under the second count. By Cavel he expected to prove that he (appellant) and Pinkie Wilson, the prosecutrix, were sweethearts while they attended the school taught by said Cavel, and that Cavel had intercepted notes from Pinkie Wilson to defendant, containing admissions of intimate relations between said Pinkie Wilson and defendant, and showing such relations to have been improper. Viewing this application for a continuance from the standpoint of the motion for a new trial, the testimony expected to be proved by Cavel is not probably true. The prosecutrix and defendant both testified that no such relations had ever existed between them. Appellant testified that on the Friday week before the alleged rape, at a certain school exhibition, the prosecutrix had promised to have sexual intercourse with him at Tolbert's, and that, in pursuance to that agreement, they met at Tolbert's, and the act occurred; that Manuel Given and John Ed Pitts were present, and heard this promise made to appellant by prosecutrix. Appellant further testified: "I never had anything to do with her before. Never was with her by ourselves alone. Never said anything to her before, nor she to me." Manuel Given and John Ed Pitts were placed upon the stand by appellant, and testified that they did not hear any such conversation between appellant and prosecutrix. The act occurred at Tolbert's, and was testified to by the prosecutrix and three other young peop...