Tennel v. State

• Decision Date: 22 December 1915
• Docket Number: (No. 3868.)
• Citation: 181 S.W. 458
• Parties: TENNEL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 458

181 S.W. 458

TENNEL v. STATE.

(No. 3868.)

Court of Criminal Appeals of Texas.

December 22, 1915.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

Henry Tennel was convicted of statutory rape, and he appeals. Affirmed.

John H. Crooker, Cr. Dist. Atty., T. J. Harris and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

"This is an appeal from a conviction assessing the death penalty for rape. The indictment is as follows:

"`In the name and by authority of the state of Texas. The grand jury of Harris county, state of Texas, duly organized at the August term, A. D. 1915, of the Criminal District Court of said county, in said court, at said term, do present that Henry Tennel, on the 2d day of September, A. D. 1915, in said county and state, did have carnal knowledge of Wilmay Claybourn, a female then and there under the age of 15 years, and then and there not being the wife of the said Henry Tennel. Against the peace and dignity of the state.

"`Jno. C. Penn, Foreman of the Grand Jury.'

"This is the form of indictment for rape upon a female under the age of consent laid down in section 1768 of Branch's Penal Code, which is now in press, and was so framed as to avoid alleging more than was necessary to be proven, while averring all that was necessary to be proven, under the suggestion and according to the rules of law laid down by this court in Fowler v. State, 148 S. W. 576.

"The charge of the court required the jury to find beyond a reasonable doubt the truth of what was alleged, and the charge of the court was not objected to on the trial and before it was read to the jury, as required by the statute of this state, and there are no bills of exception in the record. The sufficiency of the evidence is the only question presented for review.

"The mother of the child who was raped testified that the little girl was 6 years old (tr. p. 1) and was not married to any one (tr. p. 2), and the child herself testified that she was 6 years old (tr. p. 11), and this was shown without controversy.

"On September 2, 1915, appellant rented a rubber-tired buggy and was driving a sorrel horse. Tr. p. 14. Prosecutrix had gone to the house of a woman named Ella Culver to stay while her mother went up town. Appellant was there and drank some beer, and afterwards took prosecutrix and another little girl, who was 5 years old, in his buggy and went down to the bayou with them. Both prosecutrix and the other little girl testify positively and in terms that appellant penetrated their private parts with his male member while down on the bayou. Appellant was seen by other witnesses on the road to the bayou with the little girls driving the rubber-tired buggy. About two hours after appellant had left with the two babies, they came home crying, bleeding, and showing the effects of beating and choking. Prosecutrix was immediately taken to the office of the county physician, and there examined by him. He testifies to facts corroborating their account of what had happened to prosecutrix. No useful purpose would be served by setting out the details of his examination, but it shows (tr. pp. 10, 11) that terrible force was used on her sexual organ, and that she was otherwise mistreated with physical violence. The testimony of prosecutrix shows unusual intelligence for...