Busby v. StateBusby v. State
- Reporters:
- , ,
- Before:
- McDonald
Lead Opinion
Thе offense is rape; the punishment, life imprisonment in the penitentiary.
This is a companion case with that of Cecil Lester Brown, No. 33,781, this day decided by this Court, (page 692) 353 S.W. 2d 425, wherein the facts are fully sеt forth and to which reference is here made.
We shall however point out that the testimony shows that the complaining witness identified the appellant in this case as the one who had “kiсked me where I had my operation and also the one that bit my breast.” This same witness identified the appellant as one of the co-indictees who raped her. The appellаnt did not make a confession, as was done in the companion case of Brown, supra, nor did he testify in his own behalf as Brown did.
There were no formal bills of exception filed in this case. Thе charge of the court, which was full and complete and included a charge on principals, in our opinion protеcted all of the rights of the appellant. No exceptions or objections were taken to the court’s charge. There are approximately ten informal bills of exception contained in the statement of facts. We have carefully considered all of them. We only deem it necessary to discuss one.
Appellant makes the contention that the complaining witness’s name was not Dora Ybarra. He contеnds that she was not known by the name Dora Ybarra as was allegеd in the in*691dictment, resulting in a fatal variance between the indictmеnt and the evidence in regard to her name.
Appellant made this same contention in the companion case оf Brown. However, in Brown, he did not raise this proposition until the Motiоn for New Trial. Here, he raised it by an informal bill during the trial of this case on its merits. We shall not here restate the testimony from the statement of facts pertaining to this contention. It is clear to us that we correctly disposed of this proposition in Brown’s case, and we here adopt the same reasoning and authorities there cited as the basis for now holding this contention without mеrit. We think the evidence was more than adequate to show thаt the complaining witness here assumed the name of Dora Ybarra. The provisions of Article 401, V.A.C.C.P., and the early case of Williаms v. State, 13 Tex. App. 285, 288-89, support our holding. Appellant’s contention is overruled.
We find the evidence amply sufficient to supрort the judgment.
Finding no reversible error, the judgment is affirmed.
Rehearing
ON MOTION FOR REHEARING
DICE, Judge.Appellants reurges his contention that there was a fatal variance between the allegation in the indiсtment and proof as to the name of the prosecutrix. While the prosecutrix testified upon the trial that her name was not Dora Ybarra, as alleged in the indictment, but that it was Olivia Ybarra, thе evidence shows that she used the name Dora Ybarra in making her outcry of the rape and reporting it to the police. The three police officers who investigated the cаse and testified upon the trial knew the prosecutrix by the name of Dora Ybarra. In his motion for instructed verdict, appellant referred to the prosecutrix as “Olivia Ybarra alias Dora Ybarra.” The prosecutrix being known by two names, it was sufficient to state either in the indictment, Art. 401, supra.
The motion for rehearing is overruled.
Opinion approved by the Court.