Lead Opinion
Appellant is under conviction for rape, his • punishmept having been assessed at ten years in the рenitentiary.
The parties are all negroes. Prosecutrix is a girl seventeen years of age. Aрpellant had married her mother about four years prior to the date of the alleged offense. The State relied solely upon proseen *53 trix to make out its base and therefore upоn her story this conviction must stand or fall. Her testimony follows:
“At the time that this occurred my mother had gone to work. My two little sisters were at the Catholic Church. It happened early in the morning, about six o’cloсk, or around that time. ... I was in bed, and I got up and was going to say my prayers, I kneeled down to say them, and I sаw somebody behind me raising my gown and doing a dirty act, I looked around to see who it was and it was my stepfather.....He grabbed me around the waist and tried to put his privates in mine and do what he wanted to do. I tried tо make him stop but he wouldn’t and I told him that I would tell mama, and he said he would fix me. I cried and he stoppеd then and left and in a few minutes afterwards slammed the door and went away. His private male organ penetrated my female organ entirely. As a result of that intercourse I gave birth to a baby. It was the result of that intercourse that I had with my stepfather at that time. I didn’t give my consent for this intercourse. ... I didn’t let him havе intercourse with me, I tried to prevent it, but I was too weak and I could not prevent a strong man like thаt, I tried to stop it but he went on anyway. He had this hand around my waist and had his privates with the other hand trying to put it in. I wаs kneeling down with my hands like this and with my face on the side. He didn’t push me over, I was kneeling down with my knees on the floor and my hands on the bed and he kept on that wa/y until he got what he wanted. .1 guess he completed his aсt, finished it.”
The record shows appellant to be over six feet tall. Prosecutrix avers that this was the first and only act of intercourse she ever had with any man. She never reported the alleged rape to her mother or anyone else until she was- discovered to be in a state of pregnanсy. She says the reason she did not report it was because she feared appellant, and that he kept her intimidated by making “ugly eyes” at her.
When we read this most remarkable account of how, and the position in which, this alleged forcible act of intercourse took place we reсall the words of Horatio, commenting on an incident he did not understand, “But this is wondrous strange,” and Hamlet’s reply: “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.” Onе test for determining the truth, or otherwise, of evidence, is, does it comport with human experiencе generally regarding the matter under investigation? By this rule surely prosecutrix’s story is, to say the least of it, slightly out of line. Under Article 939, C. C. P. this court may reverse a judgment upon the
facts;
we hesitate to interfere with the verdict оf the jury in any ease, but it is our duty to do so when there is nol; sufficient testimony to support it. Hays v. State. 86 Texas, Crim. Rep., 469,
Appellant denied that he ever at any time had or attempted to have intercourse with prosecutrix. She avers that only оne act occurred and that it was accomplished under the unbelievable conditions herеtofore stated.
We can not in good conscience permit the judgment of conviction tо stand, and the same is reversed and the cause remanded for another trial.
Reversed and remanded.
Addendum
on rehearing.
April 16, 1924.
Referring to the oрinion of this court by Judge Prendergast in the case • of Hubbard v. State,
That this is not the rule which governs in all cases is manifest from the legislative declaration in Art. 939, C. C. P., which reads as follows: “The court of criminal аppeals may reverse the judgment in a criminal action, as well upon the law as upon the facts; but, when a cause is reversed for the reason that the verdict is contrary to the weight of evidеnce, the same shall in all eases be remanded for new trial.
The present case exemplifies the wisdom of the statute. At least, such is the opinion of this court upon whom the responsibility of the ultimаte decision rests.
With due deference to the opinion of the District Attorney to the contrary, the conclusion revealed on the original hearing comports with our eonception'of the law applicable to the present case.
The motion is overruled.
Overruled.