Mitchell v. State

• Decision Date: 21 November 1894
• Parties: MITCHELL v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W. 475

MITCHELL v. STATE.

Court of Criminal Appeals of Texas.

November 21, 1894.

Appeal from district court, Falls county; S. R. Scott, Judge.

John Mitchel, alias Jack Smith, was convicted of burglary with intent to commit rape, and appeals. Reversed.

For prior report, see 24 S. W. 280.

R. L. Henry, for the State.

HURT, P. J.

On the evening before the night of the supposed burglary, defendant, at Perry, a village in Falls county, situated not far from the place of the supposed crime, stated to Mr. Beheverger, that he was going that night to see his German girl. Miss Newman is a German girl, and states that some time during the night after she had gone to bed, "I felt some one catch hold of my foot. It aroused me, and I touched Miss Vogus, and told her that there was somebody in the room. She raised up, and struck a match, and I saw defendant crouched at the foot of the bed. He then raised up, and went rapidly down stairs. As soon as we discovered defendant, we gave the alarm. We were badly scared. My feet were covered up at the time I felt some one pulling at my foot." Miss Vogus, who was in bed with Miss Newman, states that Miss Newman remarked at the time that somebody had touched her foot, and that she believed that some one must be in the room. This witness corroborates Miss Newman in all other respects. That appellant was the man seen in the room is not questioned; the sole question for our decision being, do the above facts support a conviction for burglary with intent to ravish Miss Newman? If appellant entered the house with intent to rape, then it is evident that the house was so entered as to constitute burglary, for the outside doors were all latched when the family went to bed. This is not an issue in the case, the question being the sufficiency of the evidence to prove that appellant entered the house with the specific intent to ravish Miss Newman. In State v. Boon, 13 Ired. 244, we have a case precisely like this, with one exception, and we adopt the opinion in that case. Pearson, J., says: "The exception in reference to the want of evidence of the felonious intent [intent to rape] presents the only question as to which we have had any difficulty. The evidence of the intent charged is certainly very slight, but we cannot say there is no evidence tending to prove it. The fact of the breaking and entering was strong evidence of some bad intent. Going to the bed, and touching the foot of one of the young ladies, tended to indicate that the intent was to gratify lust. Taking hold of [`grasping,' as the case expresses it] the ankle after the foot was drawn up, and the hasty retreat, without any attempt at explanation as soon as the lady screamed, was some evidence that the purpose of the prisoner at the time he entered the house was to gratify his lust by force. It was no error to submit the question to the jury. Whether the evidence was sufficient to justify a verdict of guilty is a question about which the court is not at liberty to express an opinion." It will be observed that the court could express an opinion as to the sufficiency of the evidence to support...