84 S.W. 823 | Tex. Crim. App. | 1905
This indictment charged rape on a child under the age of 15 years; the conviction was for assault with intent to rape, the penalty assessed being twenty-five years' confinement in the penitentiary.
The testimony showed that the child was about 6 years old; that appellant at the time was employed by prosecutor H.L. Perry. On the evening of the alleged offense, prosecutor Perry went to his stable, and there saw appellant on top of his little girl. Her clothes appear to have been up, and his pants unbuttoned, and his penis out. Prosecutor immediately seized him, asked him what he was doing, and appellant said he "reckoned he was crazy." Thereupon appellant appeared to fall over in a fit. The little girl jumped up and ran to the house. Prosecutor locked the door on appellant, went to the house, a short distance away, and brought another party with him, and when they returned appellant had fled. He was not arrested that night, but was taken into custody a few days thereafter. Prosecutor's (Perry's) wife testified as to the condition of the parts of the little girl; that they appeared to be *535
very much inflamed and raw, but no blood was coming therefrom. She also testified as to statements made to her by her little girl as to the transaction, some twenty minutes thereafter. As this matter is presented in the only bill of exceptions requiring consideration, we will quote it substantially: While witness Mrs. Perry was on the stand, she stated that after the little girl came to the house, which was some twenty minutes after the alleged transaction, and after she had seen her husband and learned from him what the trouble was, she asked the little girl about it. Her little daughter Ola did not tell her anything until she asked her. That when she first examined her, she saw her drawers were buttoned up, and she asked her if she had buttoned them up, and she told her, yes; that she asked Ola what appellant had done to her in the crib, and she said, he had her lying down on her back, and was on top of her; that he had her drawers unfastened, and he had his clothes unfastened. That these answers were in reply to questions asked by her; that when the child first came to her from the stable, she was not crying, but looked "wild." That when she began asking her the questions, the child began crying; that this statement was made to her in the dining room, where she went with the child shortly after meeting her on the outside of the house. This testimony was objected to by appellant on the ground that it was not res gestæ; the child not being in a sufficient state of excitement to make it come under that class of testimony, and that sufficient time had elapsed to take it out of the docrine of res gestæ; and for the further reason that the child being incompetent to testify, her evidence would also be incompetent for the same reason; and because not voluntary, but in answer to questions propounded to her by her mother. It does not occur to us that the length of time (twenty minutes) would exclude this testimony as not being a part of the res gestæ. A number of cases in this State have admitted this character of testimony where the time was greater than is here shown. Steger v. State, 9 Texas Crim. App., 440; Lewis v. State, 29 Texas Crim. App., 201; Lindsey v. State,
Affirmed.
Davidson, Presiding Judge, absent.