Black v. State

2 S.W.2d 459, 109 Tex. Crim. 2, 1927 Tex. Crim. App. LEXIS 786

Opinions

LATTIMORE, Judge.

Conviction of rape, punishment five years in the penitentiary.

Prosecutrix is a young negro woman who lived with her husband upon land belonging to the appellant. She testified that her husband was working away from home, and that on the afternoon before the alleged rape appellant came by her house and made her an unfair proposition, and when she declined it he made a threat and started toward her. She went in the house and fastened it. She further said that the next morning while she was at work appellant slipped into her house with a shotgun, appeared suddenly where she was, and told her he was going to do the thing to her that he wanted to, seized her and threw her on the floor, laid the shotgun beside her and told her if she made any noise he would kill her, and then by force and without her consent had intercourse with her. She testified that he told her if she ever told it, and did not tell she forced herself upon him, he would kill her. She further stated that when her husband came home from his work she informed him of what had occurred, and that he left, saying he was going to see appellant. Her husband sold to appellant his crop on the latter’s land, a day or two after the alleged rape, and left for West Texas, taking prosecutrix and their baby with him. They were gone two or three weeks, but found no work, no cotton to pick where they went, and returned to the neighborhood in which they had lived before going west. At once upon their return complaint was filed against appellant. He had an examining trial before a magistrate, at which time prosecutrix testified in almost every particular precisely as she testified upon the final trial. Her testimony on the examining trial was reduced to writing and signed by her.

On the trial appellant introduced his wife and took the stand himself. The substantial effect of their joint testimony was to indicate that appellant had intercourse with prosecutrix with her consent.

The charge of the court is practically without exception. Complaint was made of the charge on the ground that it did not tell the jury that there could be no conviction on the uncorroborated testimony of the prosecuting witness, but such a charge is so manifestly deemed incorrect as to amount to no exception. Appellant asked one special charge consisting of an enumeration of a number of facts and points so as to make it plainly on the weight of the evidence, and its refusal was not erroneous.

Appellant filed a lengthy motion for new trial apparently upon the ground of newly discovered evidence, but we find nowhere in said motion any sufficient showing that the facts and all the facts therein stated were not known to appellant and his counsel prior to his trial. In fact the witnesses whose affidavits are appended to the motion practically all lived within a short distance of the parties to this transaction at the time and no reason appears why all of said facts were not available to appellant, or could not have been ascertained by him by the use of any diligence at all. We further observe that the affidavits were all taken by appellant’s attorney and in this condition cannot be considered by us. The witnesses who combated the testimony of prosecutrix, viz.: appellant and his wife, were directly interested and the extent to which the jury believed them is a matter which the law commits to the discretion of the jury. We cannot say that this is a case without evidence to support it.

The judgment will be affirmed.

Affirmed.