Turner v. State, 24 Tex. Ct. App. 12

Turner v. State

24 Tex. Ct. App. 12 | Tex. App. | 1887

Willson, Judge.

As presented to us in the record, the evidence does not support the conviction. Defendant had been in the habit, prior to the alleged burglary, of sleeping in one room of the house with his brother-in-law, who occupied,said room, *16who had authority to, and did permit him to enter said room and sleep therein on several occasions prior to the alleged burglary. In fact, at the time of the alleged burglary, the defendant was living with his said brother-in-law at said house, they occupying one room of said house, while Adam Watson and wife occupied another room in said house. An entry into the room occupied by defendant’s brother-in-law, if made with the free consent of said brother-in-law, would not be a burglarious entry, and the evidence tends strongly to show that the defendant had such consent of his brother-in-law to enter said room. (Penal Code, article 706.) As to said room, then, the evidence certainly does not establish a burglary.

As to the room occupied by Watson and his wife, there is no positive testimony that the defendant entered it. He was not seen in that room, and all the evidence tending to prove his presence in said room is found in the testimony of Watson’s wife, who testified that she was on her bed asleep, and was awakened by some one pressing on her stomach. She saw no one in the room, nor did she hear any one moving about in the room. She went to the fire place and stirred up the fire, and, finding that the defendant was in the adjoining room, she accused him of having come into her room, which accusation he stoutly denied.

But, conceding that the evidence sufficiently proves that the defendant entered Watson’s room, does it sufficiently prove that his intent in doing so was to commit the crime of rape upon Watson’s wife, as alleged in the indictment? Admit that he was in the room, and that he pressed upon the stomach of the woman while she was asleep, we do not think, considering the other facts in this case, that his acts show an intent to ravish the woman. He did not get in the bed with her; did not attempt to pull up her clothes; did not use or attempt to use any force upon her except to press upon her stomach, and how heavily, how long, and in what manner he pressed upon her stomach we are not informed by the evidence. He did not attempt to use any stratagem to induce the woman to believe that he was her husband. He did nothing whatever but “press upon her stomach,” and the evidence that he did that is circumstantial, and not above the suspicion of being fabricated, or at least, the product of a distorted imagination. We can not give our approval to a conviction founded upon such testimony as this record presents. It is altogether too uncertain, indefinite and equivocal to justify *17a court in depriving a citizen of his liberty, and fixing upon him the stigma of a felon..

Opinion delivered October 19, 1887.

The judgment is reversed, and the cause is remanded.

Reversed and remanded. ~