Venable v. State

¶1 Appellant was convicted of rape on a girl under fifteen years of age, the facts showing that she was between thirteen and fourteen years of age.

¶2 There is a very lengthy bill of exceptions found in the record covering nearly forty pages. The length of this bill is explained on the theory that the matter could not be made manifest to this court except by setting out all of the matters as they occurred with reference to the prosecuting witness. Before being asked with reference to the facts of the alleged rape, the district attorney and his associate were permitted to examine and cross-examine her mainly in the absence of the jury with reference to her testimony given before a court of inquiry. The court in his qualification of the bill anticipated that she would not testify on the trial before the jury as she had done before the court of inquiry, and also as it was claimed she did before a grand jury in Donley County. The examination was rigid. The girl stated while being examined that her testimony before the court of inquiry was not true, and that she had been frightened into making it by the prosecuting officers and other officers who were present, and that the parties who took down the statement wrote many things into the statement which she did not state and which were not true, and that she was badly frightened. This examination on the final trial lasted for a part of two days, if not nearly all of two days. She was threatened with prosecution for perjury, and was reminded of the fact by the court that he had power to inflict the. death penalty, and that he had just sent one woman to the penitentiary for twenty years, and that the prosecuting witness herself could be sent for perjury, and the district attorney in her presence threatened to prepare a charge of perjury against her. The court acted upon the theory that she was not telling the truth if she. failed or refused to repeat her' testimony as given before the court of' inquiry, and that he had authority as a court to require her to testify before the jury as she had testified before the court of inquiry. After committing her to custody over. night and the subsequent threat to send her to jail she testified in accordance with their wishes, but before and after so stating she denied the truth of it. She made statements to her mother directly after the examination by the' court of inquiry, that she had been threatened in making her statement, and that they were not true, and was chided by her mother for telling a story. She stated they had “scared” her. She also made another statement which is shown in the record under oath denying appellant’s guilt, or that he had had intercourse with her. The testimony introduced by the defendant strongly supports the theory that he had not' had inter *379 course with her. It is uncontroverted both by prosecutrix and her mother that she had her monthly sickness,—menstrual discharge, and “was flooding at the time” of the alleged occurrence, and her “wrappings” were not disturbed. The city jailer and county jailer also testified to the fact that appellant was almost immediately arrested; that the clothing worn by appellant on the night of the supposed rape had not been changed at the time of his arrest, and had no blood upon them, which would have occurred had he had intercourse with the girl under the circumstances. These matters are briefly 'stated. The reporter will include in the report of the case a full and complete copy of the bill of exceptions. A reversal of the judgment, however, is based upon the action and conduct of the court, and the district attorney and prosecuting officer, and the conduct of the sheriff as well as the examination of the, girl indicating that she was compelled to testify under threats and coercion. A discussion of the case is not further indulged as it is a case so nearly within Hamilton v. State, 68 Texas Crim. Rep., 419, it is unnecessary. The facts are similar, and the conduct in connection with this witness analogous to that in the Hamilton ease. That case was reversed and for the same reason this judgment is ordered reversed.

¶3 The judgment is reversed and the cause remanded.

¶4 Reversed and remanded.