Smith v. State

• Decision Date: 31 October 1962
• Docket Number: No. 34833,34833
• Citation: 172 Tex.Crim. 554,361 S.W.2d 390
• Parties: Henry Clyde SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 390

361 S.W.2d 390

172 Tex.Crim. 554

Henry Clyde SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 34833.

Court of Criminal Appeals of Texas.

Oct. 31, 1962.

No attorney of record on appeal for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The offense is statutory rape; the punishment, 5 years.

The sole question presented is the sufficiency of the evidence to sustain the conviction.

Appellant, the father of the 14 year old girl named in the indictment, made a statement which was reduced to writing and was introduced in evidence at the trial as a voluntary confession.

In his confession appellant stated that he had sexual intercourse with the girl first when she was eleven years old, and many times thereafter. He stated that the last time he had intercourse with her was in his bedroom, a week or so before, while his wife was in the hospital.

The girl named in the indictment testified that she was 14 years old and that she was living with her father and that her mother was in the hospital on the date alleged in the indictment, but she denied that he had sexual relations with her at that time. She testified that she had had intercourse with someone, but denied that her father was the first one, or that he ever had sexual intercourse with her.

Dr. McCallum, a state's witness, testified that he examined the girl named and that her vagina would admit two fingers; the hymen was not there and that hers was more than likely, but not necessarily, a marital type vagina.

Appellant, testifying in his own behalf, admitted making the statement but said it was not true and that he had never had sexual relations with his daughter.

A confession alone is not sufficient. It must be corroborated by proof of the corpus delicti. Duncan v. State, 109 Tex. Cr.R. 668, 7 S.W.2d 79; East v. State, 146 Tex.Cr.R. 396, 175 S.W.2d 603; Cokely v. State, 87 Tex.Cr.R. 256, 220 S.W. 1099; Marsh v. State, 170 Tex.Cr.R. 512, 342 S.W.2d 435.

The rule is that where the corpus delicti is proved, that is when the evidence shows that a crime has been committed by someone, the defendant's identity as the criminal may rest alone upon his confession. Bradshaw v. State, 49 Tex.Cr.R. 165, 94 S.W. 223; Kincaid v. State, 131 Tex.Cr.R. 101, 97 S.W.2d 175; Mayfield v. State, 92 Tex.Cr.R. 532, 244 S.W. 819; Gallegos v. State, 49 Tex.Cr.R. 115, 90 S.W. 492; Sullivan v. State, 40 Tex.Cr.R. 633, 51 S.W. 375.

The state's position appears to be that the corpus delicti was proved sufficiently by the testimony showing that the 14 year old girl had had sexual intercourse with someone, and that this evidence aided by and...