A. L. Rodgers v. The State, 30 Tex. Ct. App. 510

WHITE, Presiding Judge. This an appeal from a judgment of conviction for rape, with the death penalty assessed. As stated in the charging part of the indictment, it was alleged that appellant, “in and upon Roda May Dexter, a female, then and there under the age of 10 years, did make an assault, and the said A. L.

Rodgers did then and there ravish and have carnal knowledge of said Roda May Dexter, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.” The carnal knowledge of a female under the age of 10 years, with or without consent, and with or without the use of force, threats, or fraud, is declared by our statute to be per se rape. Penal Code, art. 528.

It is insisted that the court erred in its. charge in failing to instruct the jury with regard to force, or, rather, to explain the character and degree of force essential to the crime of rape, as declared by

article 529 of the Penal Code, to the effect that the definition of “force,” as applicable to assault and battery, applies also to the crime of rape, and it must have been such as might reasonably be supposed to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. This position is not maintainable. The court did not err in failing so to charge, because the question of force or assault does not enter into or become one of the parts or elements of rape committed upon a female under the age of 10 years.

Carnal knowledge of such female is rape, without the use of any force. Another objection is urged to the charge of the court with regard to the fact of penetration. The charge is not obnoxious to the objectipn that it was in contravention of

article 532 of the Penal Code, and that it was also upon the weight of evidence. The charge instructed the jury that to warrant a conviction for rape the fact of penetration must be established beyond a reasonable doubt, and explained what penetration meant. This further language is used: “It is not necessary that the act of copulation should have been complete, but penetration only as above explained is necessary to be proved, though such penetration need not have been to any particular depth.” This is, we think, a proper construction to be placed upon

article 532 of the Code. Penetration, whether with or without injection or emission, is sufficient, if proved, on trials for rape. Johnson v. The State, 27 Texas Ct. App., 164; Willson’s Crim. Stats., secs. 913, 915. There is no question as to the evidence upon this point. Two medical experts who examined the little girl within a very short time after the alleged rape testify most positively and emphatically that her private parts had been penetrated and thé hymen ruptured. In so far as the charge of the court is concerned, it is a plain, concise, fair, and full exposition of all the law applicable to the case.

The court did not err in admitting the testimony of the witness J. T. McGuire as to meeting the parties and hearing a conversation between them just prior to the alleged rape. The witness’ testimony upon this point corresponds most closely with the time and place and conversation testified to by the prosecutrix, and for that matter other witnesses also testify to seeing them at the time and place mentioned. Ror did the court err in permitting the aunt of the injured female to take a seat by the side of the prosecutrix during the time she was being-examined.

The evidence shows the prosecutrix to have been a girl under 10 years of age, and the judge’s qualification of the bill shows;, that while he permitted the aunt of the witness to sit by her during her examination, he warned the former not to speak to or prompt the witness, which warning was in no manner violated by the aunt. These are the only two bills of exception found in the record. While the defendant A. L. Rodgers was upon the stand testifying in his own behalf, a certain receipt, purporting to be signed by him on May 19, 1891, and which was a receipt, though never delivered, to Mrs. 0.

Dexter for $55, as part payment on a lease to the Hew Home Sewing Machine Company, was shown to the witness, and he denied that he had ever signed the receipt, stating that it was not in his handwriting, and that he never had that receipt with him on the 20th day of May (the date of the alleged rape). The instrument and signature were proved to be in his handwriting.

Lambert, a witness for the State, testified, on being shown said receipt, that he was working at the lumber yard some five or six days after the rape, and that he went to get out some lumber in the rack in which- the rape is shown to have occurred, and while moving this lumber found the receipt shown him between some of the planks, where it had fallen in a crack.

Defendant’s counsel asked the court to strike out this evidence, because the time the receipt was found was too long after the occurrence to be res gestee, which the court did, and instructed the jury to that effect, telling them, that “they could only consider the receipt in determining the credibility of the witness, and for no other purpose; that there was no evidence before them as to where the said receipt was found or procured.” Ho error prejudicial of the rights of defendant is shown in regard to this matter.

We are inclined to believe that the finding of the receipt, and the receipt itself, were admissible as original evidence against the defendant.

While it is true that several days had elapsed between the day of the offense and the finding of the receipt, yet the facts and circumstances of the finding are of such character as preclude the idea that such a receipt could have fallen between the cracks in the planks at that particular place, or was conveyed and put at said place by any third party; and the circumstances of finding the receipt, under the conditions stated by the witness, he not being shown in any manner to have taken any particular interest in or been in any way connected with the parties to the transaction, tend most strongly to corroborate the testimony of the prosecutrix.

It is unnecessary for us to go into a resume-of the facts going to establish this crime. Suffice it to say that the testimony, in so far as the prosecutrix is concerned, and she seems to have been unusually intelligent for one of her tender age, is most conclusive, and, if true, there can not be the slightest doubt of defendant’s guilt as charged.

In addition to this direct and positive testimony, the circumstances which have been adduced to corroborate it are overwhelming, and the unprejudiced mind, reviewing the facts, must necessarily be forced to the conclusion that the State has maintained and established its charge against defendant beyond all reasonable doubt.

Upon this testimony, the jury and the court below, in the exercise of their authority under the law, have seen fit to impose the highest penalty known for this crime; and the trial being a fair and impartial one, in which no reversible error is made to appear, we do not feel that we would be warranted in interfering with the judgment, and it is therefore affirmed. Affirmed. Hurt, J., absent.