A. F. Gazley v. The State, 17 Tex. Ct. App. 267

'Willsoh, Judge. I. This appeal is from a conviction of rape, founded upon the uncorroborated testimony of the injured female, a girl between the ages of nine and ten years. In some States the uncorroborated testimony of the ravished female is not considered sufficient to sustain a conviction. In Iowa it is so provided by statute. (State v.

McLaughlin, 44 Iowa, 82.) In California the supreme court holds that no rape case should ever go to the jury on the sole testimony of the prosecutrix, unsustained by facts and circumstances, without the court warning them of the danger of conviction on such testimony. (People v. Benson, 6 Cal., 221; People v. Hamilton, 46 Cal., 540; People v.

Ardaga, 51 Cal., 371.) But the general rule is that laid down by Lord Hale, which is as follows: “ The party ravished may give evidence upon oath, and is in law a competent witness, but the credibility of her evidence, and how far she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that may concur in. that testimony.” (1 Hale P. C., 633-635; 1 East’s P. C., 445; 1 Russ, on Crimes, 9th ed., 921; 3 Greenl. on Ev., § 212; Roscoe’s Cr. Ev., 808; 1 Whart. Cr. L., § 565; 2 Bish. Cr. Pr., § 961 et seq.) This is the rule adopted in our State. (Topolanck v.

The State, 40 Texas, 160; Goss v. The State, Id., 520.) And there may be a conviction for this offense even upon the uncorroborated testimony of the injured female, although she be a child under the age of ten years. (2 Bish. Cr. Law, § 968; 1 Russ, on Crimes, 9th ed., 931.) But all the authorities agree, and especially in a case where the injured female is a young child, that this is a crime requiring special scrutiny by the jury, and a careful weighing of the evidence, with all remote and near circumstances and probabilities, in cases where the testimony of the injured female is unconfirmed by other witnesses.

And it has been well said that “it should be the care of the prosecuting officer, in every case of this sort, to seek carefully for circumstantial evidence tending to confirm the main witness.” (2 Bish. Cr. Proc., § 967; 4 Blacks. Com., marg. p. 214: Davis v. The State, 42 Texas, 226.) In the case of Topolanck v. The State, 40 Texas, 160, the injured female was twenty-one years of age, and she testified positively to the commission of the offense by the defendant.

She did not tell anj’ one about it for several weeks, because the defendant threatened that if she did he would kill her and her father, and then kill himself.

Our supreme court set aside the conviction, saying; “ Though she was legally competent as a witness, these circumstances diminish the credit to be given to her testimony, and leave the question of the defendant’s guilt in so much doubt that the jury were not authorized to render any other verdict than that of not guiltjL And though the court cannot express any opinion as to the weight of the evidence, nor sum up the testimony on the trial before the jury, as they are the exclusive judges of the facts, yet, on a motion for a new trial, it is the duty of the court to set the verdict aside when it is contrary to the law and the evidence.” II.

We will now examine the evidence in this case, and determine whether or not it be legally sufficient to support the conviction. In doing this, we must bear in mind that the defendant must be presumed innocent of the crime until his guilt is satisfactorily established (Penal Code, art. 11), and that he is entitled to acquittal if from the evidence there be a reasonable doubt of his guilt. (Code Crim. Proc., art. 727.) If these rules of the law, founded not only in mercjT but in justice, be not fulfilled by the evidence, then the evidence is insufficient and the conviction cannot stand. ( Walker v.

The State, 14 Texas Ct. App., 609.) Minnie Daura, the alleged injured female, was aged nine and a half years at the time of the occurrence. She testifies that defendant committed the crime in a stable, situated within a few feet of defendant’s house, and also close to other houses where people lived at the time; that defendant took her from where her sister and herself were playing, and carried her into the stable, pulled off her drawers, and accomplished the rape, and that she did not cry out; but that, after the deed, she went back to playing with the children. Defendant is an adult male, and a married man.

At the time of the alleged rape, Mrs. G-azley, the defendant’s wife, Mrs. Daura, the mother of Minnie, together with her six other children, and Mrs. Massie, were all at the house of the defendant, sitting in front of the house, and but a short distance from the stable, which was in the rear of the house. Is this account of the alleged rape in itself reasonable, and probably true? That a rape may have been perpetrated under these circumstances is to our minds barely possible, but by no means probable.

It seems to us incredible that a man could penetrate a child not ten >Tears old, and that child not cry out from the pain which would necessarily be produced by such violence; but, on the contrary, immediately after such violence resume her play with the other children, as if nothing had happened. That she should thus act is against the laws of nature, and contrary to the common experience of life. Before we could give full credence to such a statement, it would have to be well supported by corroborating evidence of no uncertain character.

In this case, such corroborating evidence is certainly most imperatively called for by reason and justice, and yet it was not produced, or even attempted to be produced, by the prosecution. It is shown by the evidence that it was within the power of the prosecution to produce testimony which would strongly corroborate that of Minnie Daura, if hers was true. Her sister, eight years old, was with her when defendant took her into the stable, and yet the prosecution does not call this witness to testify, nor was it shown that she was incompetent to testify, or that from any reason her testimony was not attainable.

Again, Mrs. Daura, the mother of Minnie, testified as a witness in the case. She was at the defendant’s house at the very time that Minnie says she was raped, and defendant’s wife and Mrs. Massie both testify that defendant was sitting with them and Mrs. Daura in front of the house during the whole time that Minnie and her mother were at defendant’s house; and yet the prosecution did not even ask Mrs. Daura where the defendant was at the time the rape is said to have occurred, or whether he left her presence at any time during the time she was at his house.

If the defendant was absent from the party long enough to commit the rape, it is reasonable to suppose that Mrs. Daura would have observed the fact, and could have testified to it. Again: a rape upon a child of such tender years, by an adult man, it is reasonable to suppose would have left indications of the violence, upon her underclothing. There would certainly have been some flow of blood had penetration taken place, and yet there is no proof of such indications, and no attempt even to furnish such proof.

Minnie not only made no outcry or complaint of the injury at the time, but it was not until the lapse of eleven days thereafter that she made the statement that the defendant had ravished her. The circumstances leading to and connected with this statement, in our opinion, entitle it to no credit. It was discovered by her mother that the child was afflicted with some disease which caused a flow of purulent matter from her vagina. Two physicians, "Willis and Calfee, examined her and pronounced the disease gonorrhea, and gave it as their opinion that she had had sexual intercourse with a man.

She was asked by her mother about it, and persistently and most resolutely denied, time and again, that anyone had troubled her, or that she had been hurt in any way, saying that the flow had come of itself, she did not know how. Finally, her aunt, Mrs. Trippis, told her that the doctors said she must die, and, feeling of her pulse, told her she was growing very pale in the face and would die in two minutes, and, calling for and obtaining a Bible, caused the child to put both her hands upon it, and then tell who it was had injured her.

Under this inquisition she said Gfazley, the defendant, was the guilty party, and then related the circumstances of the rape, as afterwards testified to by her on the trial. Prior to this extorted confession, her mother had in vain tried every means she could think of to get her to tell who had outraged her. She had even threatened to cut off her head with a butcher knife, and then throw her in the well, telling her she would go straight to hell if she did not tell the truth about it.

But she all the time, in the face of these threatenings, which must have been terrific to a child of her tender years, denied that she had been injured by any one, or in any manner. When upon the stand as a witness, she denied, on cross-examination by defendant’s counsel, that her mother, or her aunt, or her uncle, had used the means we have mentioned, or any other means, to obtain from her a statement as to what or who produced her injury. In this respect her testimony was positively contradicted by her mother, her aunt and her uncle.

Mow, in view of the manner in which this child’s accusation of the defendant was extorted from her, in .view of the unreasonableness of her story, and in view of the direct and positive impeachment of her testimony, we are certainly justified in saying that her evidence, uncorroborated and contradicted as it is, is entitled to no credit whatever, and should not have been made the basis of a conviction.

Her account of the rape was a confession, obtained from ■ her under and by the influence of fear, and could not have been used as evidence against her, and should not, alone, be made the basis of the conviction of another. That the child had the gonorrhea seems to have been relied upon by the prosecution osa strong circumstance to prove that she had been outraged by some one.

If she did in fact have this disease, it would furnish almost conclusive evidence that she had contracted it by sexual or attempted sexual intercourse with a male, though instances have occurred where this disease has been otherwise communicated. (Whart. & Stille, Med. Juris., § 434.) But, to our minds, the evidence is not satisfactory that she had this disease. Dr. Willis, a witness for the prosecution, on his direct examination stated it as his opinion that she had gonorrhea.

On his cross-examination, he said that he was not positive that she had gonorrhea; she might have had vaginitis, but he concluded that it was gonorrhea from what Mrs. Trippis told him about the child being raped. Dr. Calfee testified in substance the same as Dr. Willis. Dr.

Park, who also examined the child, testified as to the-discharge that it might have been due to a variety of causes; that he could not tell one kind of pus from another, and could not say positively whether the flow was caused by gonorrhea or otherwise;: that such a flow is sometimes caused by pin-worms, scrofula, frequent rubbing of the parts, etc.; that it is not a rare occurrence for young female children to have such a flow.

Gonorrhea can only be determined from the history of the case. lie inferred it was gonorrhea, but would not be positive that it was, and cautioned the jury that in his inference he might be badly mistaken. Dr. Snead, another physician who examined the child, testified that he was unable-to tell from the examination whether she had gonorrhea or vaginitis. How, who can say from this evidence that the child had gonorrhea?

These learned physicians, who examined her for the-very purpose of ascertaining the nature of her injuries, and the character of the disease with which she was troubled, say that they could not determine positively what the disease was, and even Dru Willis, who at first wTas so positive that it was gonorrhea, admits upon cross-examination that it might have been something else, and that he concluded it was gonorrhea because he had been told that the child had been raped. What would his conclusion have been, if there had been no suspicion of rape in the case? What would his conclusion have been if Mrs.

Trippis had told him that the child was troubled with pin-worms, or that she was scrofulous, instead of telling him that she had been raped ? Such expert testimony as this is certainly of but little value, and should never be relied upon to convict the humblest citizen of crime. We are told by learned experts,— recognized authorities in medical jurisprudence,— that leucorrhosa, or, more properly speaking, vaginitis, is a disease which arises spontaneously in young children,. ■ especially of the poorer class, and is due to bad diet, uncleanliness, scrofulous taint, and epidemic influences.

It may be easily mistaken for gonorrhea, the discharge in the two diseases being nearly similar, and the local symptoms so much alike as to render a positive opinion hazardous. (Whart. & Stille’s Med. Juris., § 435.) Vaginitis is not an uncommon affection in girls under ten years of age, and has frequently given rise to prosecutions against innocent persons, for the crime of rape. (Id., § 436.) An instance, very similar in many respects to the case before us, is related in the

section last cited. In that case, the child most probably had vaginitis in a virulent form, and her mother and sister, upon discovering it, accused her of impropriety, and extorted from her the confession that a certain man had had sexual intercourse with her. Thereupon a prosecution for rape was instituted against the person named by her, and she testified against him. It was proved that he was in no way diseased. Under the instructions of the court, upon this state of facts, the jury acquitted the defendant.

We think from the evidence in this case, and from what we are informed by medical authors of acknowledged ability and great practical experience, it is as reasonable, and far more charitable and humane, to conclude that this unfortunate child was the victim of spontaneous disease, rather than the victim of a most beastly crime, or the willing participant with Yince Trippis, or any one else, in an immoral act. We mention Yince Trippis in this connection because. Minnie had just left him when she went to defendant’s house, and she had a nickel which she immediately took down town and invested in cakes.

Who Yince Trippis is, or whether he gave Minnie the nickel, or what he was doing alone with her in Minnie’s mother’s house, is not disclosed by the record. If Minnie in fact had the gonorrhea, and caught it from any one, it was not the defendant from whom she caught it, or, if it was, then all the learned medical experts who carefully, on two occasions, examined the defendant, must be mistaken, for they all say that he was entirely free from such disease.

Ho such examination, however, was made of Yince Trippis, nor do we mean to say that it was either necessary or proper to do so; what we mean by alluding to Yince Trippis is that the evidence in this case places him in a more favorable position to communicate the disease to Minnie than it does the defendant, and that, leaving out of view her own extorted confession, the circumstances against Yince Trippis, connecting him with her disease, are more suspicious than those brought to bear against the defendant. There is another portion of the expert testimony in this case which we will not pass without notice. Dr.

Willis testified that the hymen of the child was ruptured. He was positive about this. Three other eminent physicians, of many years’ experience in the practice of their profession, after a careful examination of the child, testified most positively that the hymen was intact, and had not in any manner or to any extent been ruptured or injured, and had never been penetrated by the male organ.

These three physidans are sustained by both reason and authority. “A full and ■complete connection between an adult male and a child under twelve years of age is, on the first attempt, manifestly impossible and it is not probable that a single act of coition in such a case would destroy or even reach the hymen. (Whart. & Stille’s Med.

Juris., §§ 429, 430, 432.) I.t may also be here mentioned that all of the physicians who examined the child said that she bore no marks of violence upon her person; there was no laceration, or contusion, or abrasion of the parts, no irritation or inflammation except that caused by the flow from the vagina, which was the only abnormal symptom discovered. After a careful consideration of all the evidence, we are clearly of the opinion that the verdict of the jury is not only unsupported by the evidence, but is contrary to the weight of it.

The presumption of the law, that the defendant is innocent of the crime, is not overcome by such questionable, uncertain and unreasonable testimony as this case presents. Mr. Wharton says: “ It is true that convictions have been sustained when resting exclusively on the testimony of a young child, or of a woman who, at the time of the alleged act, was under the influence of ether; but these are dangerous precedents; and when corroborative testimony can be procured, its non-production should tell seriously against the prosecution.” (1 Whart. Cr.

Law, § 565.) It would, indeed, in our opinion, be a most dangerous precedent to allow the conviction in this case to stand, even though the defendant might in fact be guilty. But when we consider that, in all probability, the defendant is entirely innocent of this most heinous offense, it would not only be a dangerous precedent, but a monstrous and inexcusable act of injustice and inhumanity, to sanction the verdict. III.

Without discussing the exceptions taken by defendant to the conduct and argument of counsel for the prosecution, we will say that in a case like this, the very mention of which arouses public indignation and fires the minds and passions of a community with a desire for vengeance against the guilty party, the court and the counsel engaged in the trial should be scrupulously cautious to accord to the defendant a fair and impartial trial, as free as possible from excitement or prejudice. There should be no clap-trap or sharp practice made use of by counsel for the State.

No improper means should be resorted to, to. prejudice the minds of the jury against the defendant in the remotest degree. No testimony should be offered on the part of the prosecution that is not relevant and legal. No remarks should be made by the counsel for the State which are not fully warranted by the evidence. Hatters not in evidence should not even be alluded to in argument, where such matters might possibly prejudice the defendant.

In this case, we regret to say, that distinguished counsel assisting in the prosecution, in our opinion, suffered their zeal and indignation, and horror of the supposed fiendish crime of the defendant, to lead them into the errors complained of by the defendant, and which errors, we think, were calculated to injure his rights.

In a case like this, in which there is always excitement and feeling in the minds of the community where it occurs, and where the trial of the accused party takes place, as in this case it did, soon after the supposed crime, it requires, but a trivial matter indeed to prejudice the case of the accused. This fact is well known to all who have had experience in criminal trials. Because of the views we entertain of the questions we have discussed, the judgment of conviction is reversed and the cause is remanded for a new trial. Reversed and remanded. [Opinion delivered December 6, 1884.]