Sanders v. State

• Decision Date: 10 October 1934
• Docket Number: No. 16867.,16867.
• Citation: 75 S.W.2d 116
• Parties: SANDERS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 116

75 S.W.2d 116

SANDERS v. STATE.

No. 16867.

Court of Criminal Appeals of Texas.

October 10, 1934.

Commissioners' Decision.

Appeal from Criminal District Court, Nueces County; Geo. C. Westervelt, Judge.

T. J. Sanders was convicted of rape, and he appeals.

Reversed and remanded.

John J. Pichinson and Fred H. Woodard, both of Corpus Christi, for appellant.

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

CHRISTIAN, Judge.

The offense is rape; the punishment, confinement in the penitentiary for five years.

Appellant patronized Mrs. Cordelia Hogue's home laundry prior to August 27, 1933, the date of the alleged offense. A misunderstanding arose between the parties, and Mrs. Hogue became angry at appellant. Among Mrs. Hogue's children was Pearl, who was four years of age. Appellant was apparently fond of the child, and on occasions she visited him in his home. In the early morning of the 27th of August, 1933, appellant came to Mrs. Hogue's home in his automobile for the purpose of showing her a rent house which she contemplated moving into. After looking at the house the parties returned to Mrs. Hogue's home. When Mrs. Hogue got out of the car, appellant asked her if he might take Pearl home with him, saying that he would give her her breakfast. Mrs. Hogue gave her consent, and appellant and Pearl drove away. According to the testimony of Mrs. Hogue, appellant brought the little girl home in about thirty minutes, helped her out of the car, and left.

The alleged injured party, Pearl Hogue, was not used as a witness. The testimony of Mrs. Hogue as to declarations made to her by Pearl Hogue at the time of her return home, together with the testimony of the physician who examined Pearl, was relied upon by the state to establish the offense of rape. Upon the question of the alleged assault, Mrs. Hogue testified, in substance, as follows: When appellant helped Pearl out of the automobile she observed that the child's dress was tucked in her bloomers. She asked her what was the matter. Pearl first replied, "Nothing." Upon further questioning, she told her mother that she and appellant had been in the country. The witness then asked Pearl what happened out there. She answered that appellant pulled her bloomers off and laid her down on the seat of the car; and that, after pulling his trousers down, he exhibited his private parts. Further, Pearl told her that after appellant let her up he in effect stated that he had had sexual intercourse with her.

About two hours after Pearl's return home a physician was called to examine her. According to his testimony, he found that the "maiden-head" had been ruptured, but discovered no presence of excretion. He testified further that there were bruises on the exterior portion of the vulva. Again, he testified that he found no evidence on which he could affirm that there had been recent penetration by a male organ. His testimony concerning statements made to him by Pearl Hogue was substantially the same as that of Mrs. Hogue.

The city marshal of Robstown questioned Pearl some time after the alleged assault. He gave testimony touching her declarations substantially the same as that of Mrs. Hogue. In this connection it might be stated that appellant requested the court to withdraw from the consideration of the jury the testimony of the city marshal and the attending physician as to declarations made to them by prosecutrix, on the ground that said declarations were hearsay. This motion should have been granted. The statements were not shown to be res gestæ, having been made from one to two hours after Pearl returned home, and after she had detailed to her mother the circumstances touching the alleged assault.

During the trial prosecutrix was examined by two physicians who testified that the hymen was intact. In short, the testimony of the physicians last mentioned was to the effect that their examination disclosed no injuries whatever to the female organ of Pearl, and convinced them that she had at no time been penetrated by a male organ.

A neighbor of Mrs. Hogue testified that she had observed the female organ of prosecutrix something more than a week prior to the alleged offense and that it was abnormally red.

Testifying in his own behalf, appellant, who was sixty-five years of age, admitted that he was with Pearl on the occasion in question, but declared that he was...