23 Tex. Ct. App. 73 | Tex. App. | 1887
We find no error in the charge of the court, but regard it as a clear and admirable exposition of the law of the case. There was no error in refusing the special instructions requested by the defendant, as the whole law applicable to the evidence had been correctly given in the general charge of the court.
We are not satisfied with the sufficiency of the evidence. We do not think the conviction is supported by it, with that strength ana conclusiveness which law and reason in such cases demand. The testimony of the alleged injured female conflicts in some particulars with that of her father, and in other respects is not free from suspicion. While she states that she did not consent to the alleged outrage upon her person, her conduct on the occasion, as detailed by herself, is somewhat inconsistent with a want of consent on her part, and rather leads to the conclusion that she was not an unwilling victim. Her testimony is but very slightly corroborated. Her father testified that he found blood upon her underclothes the next morning after the alleged outrage, but we are not informed whether these blood stains were recent or old, or whether other causes than the alleged outrage might not have produced them, No examination of the girl’s private parts was made until five weeks after the alleged crime, and the evidence discloses no reason why such examination was not sooner made.
It occurs to us that if the defendant is guilty of the offense of which he has been convicted, his guilt can be established more satisfactorily than has been done. There appears to exist some sources of information which were not explored and developed on the trial. It seems that one T. M.- Moore must have possessed some knowledge concerning the transaction, and yet he was not produced as a witness, and his non-production was not accounted for by the State. Again, about five weeks after the alleged crime, the person of the female was examined by two physicians with a view to ascertaining whether or not she had been outraged. When their testimony was offered by the State, the defendant objected to it, and the court sustained the objection. In this ruling we think the court erred. It is true that this testimony would be, in point of time, rather remote, but still it might throw much light upon the transaction, and in cases like this we do not think any testimony should be excluded which tends, in the least degree, to aid the jury in arriving at the
Because, in our opinion, the evidence is not sufficient to support the conviction, the judgment is reversed and the cause is remanded.
Reversed and remanded.
