McKelvey v. State

263 S.W.2d 774, 159 Tex. Crim. 378, 1953 Tex. Crim. App. LEXIS 1900

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 1953
• Docket: 26610
• Status: Published

Opinions

DAVIDSON, Judge.

This is a case of rape by assault, with punishment assessed at 10 years in the penitentiary.

The prosecutrix was the eleven-year-old sister-in-law of the appellant. The mother of the prosecutrix and the wife of appellant (prosecutrix’ sister) left prosecutrix and appellant at the mother’s home when they left for town to do some shopping. According to the testimony of the prosecutrix, the rape occurred in the home during their absence. Upon their return, prosecutrix immediately told her mother what had happened and about the crime committed. The mother and father of prosecutrix carried her to town and to the officers.

An examining physician corroborated the prosecutrix as to the recent penetration of her private parts.

Appellant denied the act alleged, and protested his innocence.

It was the province of the jury to believe the state’s testimony.

The statements which prosecutrix made to her mother were in the nature of an outcry and a part of the res gestae.

The trial court did not err in permitting the introduction of such testimony. Williams v. State, 145 Tex. Cr. R. 536, 170 S. W. 2d 482; Hall v. State, 141 Tex. Cr. R. 607, 150 S. W. 2d 404.

A bill of exception appears, complaining of argument of state’s counsel. The trial court’s qualification appended to this bill of exception, which appellant accepted, shows that the argument complained of was in reply to argument of appellant’s counsel. Having accepted the bill of exception as so qualified, appellant is bound thereby. Being in reply to argument of appellant’s counsel, the argument complained of was authorized.

No error appearing, the judgment is affirmed.

Opinion approved by the court.