Wair v. State
Decision Date | 26 May 1937 |
Docket Number | No. 18709.,18709. |
Parties | WAIR v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Harrison County; W. H. Strength, Judge.
Charles Wair was convicted of rape, and he appeals.
Reversed and remanded.
Shead & Smith and Harvey P. Shead, all of Longview, and Thomas B. Ridgell, of Dallas, for appellant.
Benjamin Woodall, Co. Atty., of Marshall, and Lloyd W. Davidson, State's Atty., of Austin, for the State.
The conviction is for rape; penalty assessed at death.
Mrs. Tom Frazer, mother of the prosecutrix, testified that she, in company with her husband, drove to Tyler, Tex., about noon on the 13th day of February, 1936, and returned about 5:30 o'clock that afternoon. They left their thirteen year old daughter alone in their apartment. Upon their return the witness found her daughter in a hysterical condition. She was crying and appeared to be very nervous. She complained of pain in her abdomen. The witness made an examination of the prosecutrix and found her underclothes to be bloody. She then took the prosecutrix to the bathroom, gave her a douche, and put her to bed. The prosecutrix was examined on the following morning by two physicians whose testimony will be adverted to later in this opinion.
Joy Frazer, the prosecutrix, testified that appellant came to the house where she was and asked for her father. Upon being advised that her father had gone to Tyler, the appellant grabbed the prosecutrix and kissed her. She fought him and slapped him in the face. He kept on kissing her. He picked her up, took her to the living room and tried to get her on the couch. She rolled off the couch and on to the floor. He then picked her up and took her to the bedroom. From the testimony of the prosecutrix we quote:
On cross-examination the prosecutrix testified:
Appellant testified that he went to the Frazer home about noon on the 13th of February for the purpose of seeing Mr. Frazer on business. He found the prosecutrix in the house alone. He had been drinking all day and had been drinking heavily for the past two years. He asked her to kiss him which she did. He then asked her the second time to kiss him, which she did. They went to the divan where appellant put his arm around her and kissed her some more. From the appellant's testimony we quote:
After leaving the home of the prosecutrix, the appellant went to a place called "Town Tavern" and drank some beer. He testified further:
Dr. Van Sickle made an examination of the prosecutrix about 9 o'clock on the morning after the alleged rape and found that the hymen had been completely destroyed. He noticed an irritation where the hymen was attached to the mucous membrane. He did not find any fresh blood upon the privates of the prosecutrix. The doctor expressed the opinion that something had penetrated the vagina of the prosecutrix. On cross-examination the doctor stated that the hymen of a female (a virgin) could be punctured with a finger or something of that kind. He also stated that the insertion of one or two fingers would cause a certain amount of irritation or inflammation.
Dr. Ross made an examination of the privates of the prosecutrix with a speculum and found that the entrance into the vagina had been torn away with only fragments remaining. The prosecutrix was not bleeding but the torn edges were irritated. The doctor expressed the opinion that the hymen had recently been broken. He also stated that if the mother of the prosecutrix had administered a douche the day before his examination was made, she would have destroyed some of the vital evidence in making a medical examination. The doctor stated that the hymen could have been destroyed with a douche nozzle by force; also that the hymen could have been destroyed by...
To continue reading
Request your trial-
Nilsson v. State
...support of this contention, appellant relies on the holdings of this court in Vasquez v. State, 167 S.W.2d 1030, and in Wair v. State, 133 Tex.Cr.R. 26, 106 S.W.2d 704. Vasquez v. State, supra, stands for the proposition '. . . the appellate court has frequently treated the case as one of r......
-
Pawson v. State, 367-90
...than an aggravated assault." 1 Enfield v. State, 94 Tex.Cr.R. 226, 250 S.W. 162 (1923), and cases cited therein; see Wair v. State, 133 Tex.Cr.R. 26, 106 S.W.2d 704 (1937); see also Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479, at 481, 482 (1952) (putting finger in private part is "i......
-
State v. GODWIN
...it was for the jury to determine how far the inference of guilt was weakened by the other facts relied on.' See, also, Wair v. State, 133 Tex.Cr.R. 26, 106 S.W.2d 704. In this case the majority held proof of penetration by the accused's male organ was insufficient. But there was direct evid......
-
Gonzalez v. State
... ... Q. I'm asking the questions, please ... A. I don't know ... Appellant argues that the above testimony shows that the victim did not know whether appellant's penis penetrated her, and cites Blair v. State, 56 S.W. 622 (Tex.Cr.App.1900) and Wair v. State, 133 Tex.Cr.R. 26, 106 S.W.2d 704 (Tex.Cr.App.1937) for the proposition that if a prosecutrix in a rape case is uncertain of what penetrated her, a conviction will be reversed. However, in the case before us, the prosecutrix repeatedly and unequivocally testified on other occasions that ... ...