Jim Coleman v. The State, 26 Tex. Ct. App. 252

Willson, Judge. We do not hesitate to say that, as presented to us in the record, the evidence is insufficient to sustain the conviction. It devolved upon the prosecution to prove satisfactorily, beyond a reasonable doubt, not only that the defendant entered the house, but that he entered it with the specific intent to commit the felony of rape, as charged in the indictment. We do not say that the evidence is insufficient to warrant the conclusion that the defendant did enter the house.

We must say, however, that we would hesitate to declare that it excludes all reasonable doubt that he was the person who entered the house. While the witness Maggie Hill testified positively that she recognized him, it is evident from her own statements that she may have mistaken another person for the defendant, and the circumstances tending to identify him as the person who entered the house are weak and inconclusive.

But if we concede that it was sufficiently proved that the defendant entered the house, the evidence falls far short of proving with any degree of certainty that he entered with the specific intent of committing rape. We might as well conclude from the evidence that his intent was to commit murder or theft as that it was to commit rape. In fact, we think it more reasonable, from the evidence, to conclude that his intent was to commit theft than to commit any other crime, and particularly the crime of rape. In the same house in which Maggie Hill was sleeping were five other persons.

Her father, and mother were in a room adjoining hers; two men were in another room, and her brother, ten years of age, was in the bed with her. It is scarcely probable that a sane person, knowing the situation, would undertake to commit a rape upon Maggie Hill by force, and there is no pretense that a rape by means of threats or fraud was intended. Opinion delivered October 27, 1888. When he was discovered by Maggie Hill in her room, and she accosted him, he made no attempt to use force upon her, but fled from the room instantly.

The fact that he placed his hand ■on her bosom while she was asleep does not necessarily show that his intention was to ravish her. It was a dark night, dark in the room, and he may have touched her person accidentally while groping about the room in quest of something to steal. For aught that appears in the evidence before us, he may have been in the room with no intent to commit a felony or theft, but with other intent unnecessary to mention.

We are wholly uninformed by the record as to facts which might repel the supposition that he may have entered the house with any other intent than to commit felony or theft. We must look alone to the facts disclosed in the record in determining the sufficiency of the evidence to support the conviction, and from the facts thus sliown we must say that the evidence does not prove that defendant entered the house with the intent to commit the crime of rape, and no other intent can suffice to sustain the conviction. (Hamilton v. The State, 11 Texas Ct. App., 116; Turner v. The State, 24 Texas Ct.

App., 12.) The judgment is reversed and the cause is remanded. Reversed and remanded.