Davis v. State
43 Tex. 189
Tex.
1875
Check Treatment
Devine, Associate Justice.

Aрpellant was indicted, charged with having on the 14th of July, 1874, in Washington county, committed the crime of rape. The trial resultеd in the following verdict: “We, the jury, find the defendant guilty as charged in the indictment, and assess the punishment to be death by hanging.” „

The сase is before us on the grounds set forth in the motion for a new trial, and the exceptions taken during the trial to the fоrm of the questions ‍‌‌‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌‌‍put to the principal witness for the State, and the alleged errors in the charge given and instructions asked by defendant and refused.

*190The four questions asked by the district attorney and excepted to by defendant werе, in their terms and in substance, as leading as it was possible to make them. The simple answer to each of these questions of yes or no by the witness proved defendant’s guilt or declared his innocence. The questions suggested to a рerson of the lowest capacity the answers desired. As such, these questions should not have been permitted to be put to the witness, and the court should have sustained the objections to them. While a large discretion is necеssarily vested in the presiding judge relative to the form of questions or the mode of interrogating a witness under a peсuliar state of feelings, intellect, or information, yet to justify or sanction a departure from the established rules of evidence to so great a degree, and on matters of vital interest to the accused, as was permittеd in this case, the explanation or statement of the reason for such departure should be shown in connection with the bill of exceptions taken. ISTo reason is stated in the record.

The exception to the charge is to the following section: “The burden is on the State, and it must prove every material allegation in the indictment. When аll the other facts concur, proof of penetration completes the offense.” While this portion of the charge gave, in substance, to the jury the law of the case, we believe it failed ‍‌‌‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌‌‍to place before the jury the main fact to be determined by them in that direct and clear manner which the rights of the defendant demandеd, and may have led to the misconstruction of the charge by the jury, which defendant’s counsel, on the hearing of the motion for a new trial, offered to prove by the affidavits of several jurors.

The instruction asked on behalf of defеndant and refused was, “that the burden of proof is on the State, and the State must prove penetration beyond a reasonable doubt before the jury can find the defendant guilty of rape.” This instruction,-we are of opinion, should hаve been given. *191Without proof of penetration the charge of rape could not be made out, and оf ‍‌‌‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌‌‍this the jury should have been so informed in no obscure or doubtful terms.

There was no error in the refusal of the judge to pеrmit, on the hearing of defendant’s motion for a new trial, several of the jurors to be sworn to prove their misconstruction of the charge of the court. The permitting such a practice would result in greater evils than those that might possibly be removed by such action; and in this case, when the life of the defendant was dependent upon their verdiсt, if any portion of the jury entertained any doubt as to the meaning of any part of the charge, the code authorized, and it was certainly their duty to return to the court and obtain from the judge, such additional charge or explаnations as the question required.

The examination of the question whether or not “ the verdict is contrary to law and evidence,” leads to the conclusion that the evidence is of that ‍‌‌‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌‌‍uncertain and doubtful character that is wеll calculated to create a conviction that the verdict of the jury is not supported by the evidencе.

The person alleged to have been ravished was shown by the evidence of her mother and a physician, on whose place they had formerly resided, to be about ten years and six months old. On her examination she stated she did not know what the obligations of an oath were, other than that if she told a lie she “ would be whipped for it.” The evidеnce was somewhat contradictory as to consent or acquiescence on her part. She madе before or at the time of the alleged commission of the offense no outcry. A girl smaller than herself was sleеping in the room at the time and was not awakened. Defendant, she asserted, did not prevent her from crying out or mаking an alarm; it was in broad daylight; the hands were at work, about half an hour after sunrise. She further stated that the door was оpen; that defendant did not shut it; and that she could hear them call her from the house.

*192The girl charged to have been ravished was examined on the day named by two practising physicians, one of whom testified that on his examination hе discovered evidence of transactions which “ seemed to be of an old standing, but did not believe that penetration had taken place that day,” and again stated that he gave it as his “professional opinion that ‍‌‌‌‌​‌​‌​‌‌​‌​​‌​​‌​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌‌‌​‌​​​​‌‌‍there had been no penetration that day.” He further stated girls of her age were often in a condition which perhaps might explain her appearance to those who saw her on that day. All the witnesses agreed as to the day. The other physician, who made a personal examination of the girl, stated in substance that there hаd been no penetration on that day.

The evidence on the subject of penetration being so unsatisfaсtory, if it is not completely negatived, we are of the opinion that the verdict is not warranted by the evidence, and that the judge should have granted a new trial.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.