Petty v. State

• Decision Date: 01 November 1922
• Docket Number: (No. 7168.)
• Citation: 249 S.W. 849
• Parties: PETTY v. STATE.
• Court: Texas Court of Criminal Appeals

249 S.W. 849

PETTY v. STATE.

(No. 7168.)

Court of Criminal Appeals of Texas.

November 1, 1922.

On Motion for Rehearing, March 28, 1923.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

George Petty was convicted of rape on a girl under the age of consent and he appeals. Reversed and remanded.

Tom Whipple, of Waxahachie, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Ellis county of the offense of rape upon a girl under the age of consent, and given five years in the penitentiary.

There was abundant evidence showing numerous occasions on which the appellant met the little girl in question, who was but 14 years of age, and took her out riding in his car. Appellant was a married man. One witness testified positively to seeing an act of intercourse between appellant and prosecutrix. Two physicians who examined the child said that her private parts were enlarged so as that she could easily have had intercourse with a man.

There is but one bill of exceptions in the record which presents appellant's objection to the introduction of the girl as a witness after appellant had himself testified, it being objected that this was not rebuttal evidence. The latitude given to our trial courts in the order of the introduction of testimony is almost without limitation, and unless there be an affirmative showing of some injury or the probability thereof from the action of the court in allowing the state to introduce evidence after the defendant has closed, we will not ordinarily review the action of the court below. See article. 718, Vernon's C. C. P., and authorities cited; Hewitt v. State, 10 Tex. App. 506; Mancha v. State, 57 Tex. Cr. R. 335, 123 S. W. 129. An examination of the testimony of the witness complained of reveals the fact that much of her testimony was in rebuttal. Appellant positively affirmed that he had never driven her out in his car but three times, and that he had never hugged her or kissed her, or indulged in familiarity with her person. She contradicted him upon each of the above questions.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The subject of the alleged rape was Minnie Bryant, a girl under the age of 15 years.

To prove the act of intercourse upon which the prosecution is founded, the state relied upon the testimony of one McCaulley. From his testimony it appears that he owned a meat market, and that on various occasions he had seen the appellant and the girl in question meet on the street at a point near the market; that he had seen them having these meetings for two or three weeks; that appellant would be driving an automobile on these occasions, and a number of times he had seen her get into the car and ride with the appellant; that on other occasions he had met the appellant and the girl while they were riding on the road; that he had seen them some five or six times as he went back and forth; that on or about the 13th of September, he saw them in the automobile close to the slaughterhouse across the T. & B. V. Railroad tracks, about 100 yards. They were on the back seat "loving" one another; that he then saw her lie down on the seat; that he apparently saw her unfasten her supporters and lie down on the seat, and saw the appellant open his trousers, and saw him on top of her; that he could see their motions; that when they got through, they took a handkerchief and dried themselves off and threw is out of the car; that the automobile was standing near a slaughter pen.

A doctor testified that he had made an examination of the vagina of the girl and found the parts in a condition indicating that she had had intercourse a number of times with some one; that is, that the vagina was in a condition which indicated that some object had passed into it a number of times; that he could not say that it was a male organ; and could not say that it was not due to masturbation. Another doctor testified to a similar state of facts.

Appellant testified that he had been riding with the girl on one occasion; that she had requested him to let her ride in his car. He denied having had improper relations with her.

The prosecutrix was introduced in rebuttal and testified that she had been out riding with the appellant a number of times; that he had kissed her on a number of occasions That part of her testimony directly relating to the offense in question is as follows:

"A. Well, I guess he was trying to have intercourse.

"Q. Don't you know? A. Well, yes.

"Q. What was he trying to do? A. To have intercourse.

"Q. What was he doing? A. Well, I said he was trying to have intercourse; but he didn't.

"Q. He did not? A. No, sir.

"Q. Did he have his arms around you then? A. No, sir.

"Q. When you met him at McCaulley's place of business down here at Kaufman and East Main, would he always bring you back there? A. Yes, sir.

"Q. When you met him at the post office, would he always bring you back to the post office? A. Yes, sir.

"Q. Would you always meet him first at McCaulley's when you went riding with him? A. Yes, sir.

"Q. At the time you say he was trying to have intercourse with you, was that with your consent? A. Well, yes."

The state relied upon the theory that the offense was committed at the place described by her and the witness McCaulley. The witness Minnie Bryant testified that she had been riding with appellant quite a number of times; that she had met him as testified by the witness on several occasions and had ridden in his car. The state then categorically inquired of her whether she had been at the point between the T. & B. V. Railroad and the slaughterhouse described by the witness McCaulley. To this she replied that she had been there one time and only one time. The reading of her testimony leaves no doubt in the mind of the writer that the occasion to which she adverted is the one upon which the state relied. The writer is unable to reach any conclusion other than that stated; that is, that she and McCaulley testified to the same transaction. The state's witness, the alleged injured party, not only denied the acts of intercourse, but testified to a state of facts which are not inconsistent with the circumstances detailed by the other state witnesses, but are consistent with the innocence of the appellant of the offense charged.

If the conviction was for the offense of assault to rape, the evidence would support the conviction, but to constitute the offense of rape, proof of penetration is absolutely essential. Penal Code, art. 1067; Branch's Ann. Tex. P. C. § 1803; Duckworth v. State. 42 Tex. Cr. R. 74, 57 S. W. 665; Blackmon v. State, 87 Tex. Cr. R. 173, 220 S. W. 93. And in the absence of direct evidence of penetration, it may be proved by circumstances. Dies v. State, 56 Tex. Cr. R. 36, 117 S. W. 979; Word v. State, 12 Tex. App. 183. But it must be proved beyond a reasonable doubt. Davis v....