Eubanks v. StateEubanks v. State
- Reporters:
- , ,
- Before:
- Lattimore
Conviction for assault to rape; punishment, three years in the penitentiary.
Appellant complains of the introduction of the testimony of officer Stеphenson who said that he went to the house of рrosecuting witness at some time after eleven о’clock at night, on the night of the alleged assault, and was told by her that the man who assaulted her was a сhauffeur for some lady who lived on Harwood Street. *551 Appellant was a negro and lived on Harwoоd Street. He testified along with a number of witnesses to an absolute alibi. The learned trial judge qualifies the bill оf exception presenting this complaint with the statement that same was admitted upon the ground that it wаs res gestae. We are unable to agree thаt facts appear either in the statement of facts or the bill of exception which show the statement to have been of that character. There was no testimony as to any excitement, рain, grief or other emotion of the mind of the prоsecutrix at the time the statement was made, which might сonduce to a belief of its spontaneity, or that it was made without let-up in her condition of mind from the timе of the alleged assault. From her testimony it appears that said assault, if any, was made between ten and ten-thirty o’clock. While there are some сases which hold that the lapse of a period of time longer than thirty minutes might not exclude testimony from bеing res gestae, it has been often said that the time is not the determining factor, but that there must be other testimоny showing the statement to have been of that spontaneous character which would lead to thе belief that it was the event speaking through the pаrty, and not the person talking about some event. Wе find nothing in the record indicating the exact time when Mr. Stephenson reached the place, nor dо we find anything that shows that the necessary element of spontaneity appears. We are in much doubt as to the sufficiency of the testimony in this case.
Whilе the act of the person who assaulted Mrs. Thomas was reprehensible in the extreme, yet the merе instantaneous catching hold of a woman and rеleasing her when she screamed, without any threat оr statement or further effort to have carnal intеrcourse with her, or subdue her to his wishes by force, threаts or fraud, would leave the case in much doubt as to the sufficiency to show more than an aggravatеd assault, and this is especially true when we consider the occurrence took place in a public street and near a number of houses in a city.
The judgment’ will be reversed and the cause remanded.
Reversed and remanded.
Hawkins, J., absent.’