Walker v. State
| Decision Date | 26 April 1922 |
| Docket Number | (No. 6792.) |
| Citation | 240 S.W. 538 |
| Parties | WALKER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Hood County; J. B. Keith, Judge.
Fred Walker was convicted of statutory rape, and he appeals. Affirmed.
B. H. Oxford, of Stephenville, for appellant.
R. G. Storey, Asst. Atty. Gen., for the State.
Conviction is for statutory rape, punishment assessed at five years' confinement in the penitentiary.
We gather from the record that appellant is a negro man about 62 years of age, and the alleged injured female, Jewell Keith, a little negro girl 10 years of age. Upon the occasion of this alleged offense it is claimed by the state that appellant took Jewell Keith and Ethel Wren, the latter being about the same age as prosecutrix, on the creek fishing. Jewell Keith testifies that, ostensibly for the purpose of finding a better fishing place, appellant took her with him, leaving Ethel alone, and accomplished the act of intercourse with her at that time. Ethel supports the testimony of prosecutrix, stating that appellant and Ethel left her, he saying they were going to find a better fishing place; that she, becoming tired of being alone, went to look for them, and found them in the act of copulation. Appellant testified, denying in toto the transaction. He claimed that he was at the time afflicted with a loathsome disease, and that his private parts were in such condition that if he had desired to accomplish an act of intercourse with a mature woman it would have been impossible for him to do so, and further that if he had committed an act of intercourse with prosecutrix the disease would have been communicated to her. It appears from the evidence that no such disease had been communicated to her, and the testimony was conflicting as to whether such communication would have necessarily occurred. Some of the physicians who testified asserted that if a male person afflicted with the disease from which appellant was suffering had intercourse with prosecutrix, it would have been likely that such disease would have been communicated to her, but that such result would not always occur. The testimony of other physicians was to the effect that in their opinion, if such copulation had taken place, the disease would have been communicated. The doctor who examined the little girl testified that he could not say that she had ever had intercourse with a man, and the testimony from him is silent as to the condition of her private parts as to whether or not they were enlarged or showed the entrance, or probability of entrance, of any object as large as a male organ. He testified that he detected no sign of disease such as appellant was afflicted with. Prosecutrix herself testified positively to complete intercourse on the part of appellant. It will be seen that the testimony was conflicting, and was of that character which would have authorized the jury to have reached a different conclusion than that at which they did arrive, but, it being a matter purely for their determination, and the evidence being sufficient to support the verdict, we do not feel authorized to disturb the same by reason of such conflict.
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