x999-1" type="majority"> MORROW, Presiding Judge.

— The offense is rape; punishment fixed at confinement in the penitentiary for a period of seven years. The adequacy of the evidence is challenged.

The law did not require that there be corroboration of the prosecutrix. Hamilton v. State, 36 Texas Crim. Rep., 772; Cook v. State, 88 Texas Crim. Rep., 659, 228 S. W. Rep., 213; Gazley v. State, 17 Texas Crim. App., 278. When the uncorroborated testimony of the prosecutrix is relied on in a case of this character, justice demands a most careful scrutiny of her testimony. On many occasions such testimony has been characterized by such self-contradictions or other weaknesses as have impelled this court to refuse to sustain the conviction. Gazley v. State, 17 Texas Crim. App., 278; Montresser v. *523 State, 19 Texas Crim. App., 281; Kee v. State, 65 S .W. Rep., 517; Adkins v. State, 65 S. W. Rep., 925; Donoghue v. State, 79 S. W. Rep., 309; Dusek v. State, 48 Texas Crim. Rep., 519; Alcorn v. State, 94 S. W. Rep., 468; Logan, v. State, 66 Texas Crim. Rep., 506, 148 S. W. Rep., 713; Edmondson v. State, 150 S. W. Rep., 917; Draper v. State, 57 S. W. Rep., 655; Elam v. State, 20 S. W. Rep., 710; Blair v. State, 56 S. W. Rep., 622; Duckworth v. State, 42 Texas Crim. Rep., 75; Galaviz v. State, 82 Texas Crim. Rep., 377, 198 S. W. Rep., 947; Smith v. State, 86 Texas Crim. Rep., 455, 217 S. W. Rep., 154.

Touching the sufficiency of the evidence, each case must stand upon its own facts. Among the cases in which the conviction upon the uncorroborated ■ evidence of the prosecutrix has been sustained are found in the following of recent date: Blackmon v. State, 87 Texas Crim. Rep., 173, 220 S. W. Rep., 94; Cook v. State, 88 Texas Crim. Rep., 659, 228 S. W. Rep., 213.

In the instant case, the prosecutrix testified that upon appellant’s invitation, she got into his automobile with him, at a certain place and time, that in a named locality the car was stopped and the act of intercourse accomplished with her acquiescence. By appellant’s admission and by other testimony, it was shown that she was in the car with him at a time and place coinciding with her testimony and that she remained therein with him for about an hour.

An examination of her person long after the occasion relied on showed the hymen ruptured and healed. She said that the act was accompanied by no pain or blood, and that it was the first in her experience. The doctor-witness said that this was improbable though not impossible. She, when first accused, made statements inconsistent with her present testimony, in which she intimated that her brother or father had mistreated her. She admitted and endeavored to explain these declarations and denied others attributed to her. Her statement is not so at variance with human experience as warranted the court in refusing to submit it to the jury. There were some corroborating circumstances found.

A continuance was sought to secure the testimony of Gary Barker by whom appellant expected to prove compromising conduct of the prosecutrix with other men prior to the date of the offense. The witness appeared during the trial. He was not called to testify, appellant stating to the court that he had learned from the witness that it was not he but another who would give the testimony. No reason is advanced for the failure to get the information before, and no effort to secure the attendance of the other person named is revealed.

Appellant- appealed to the court for a private interview with the prosecutrix. The court consented to the interview provided the *524 judge or the sheriff be present. The appellant declined these terms. The bill does not disclose it, but we presume the witness was under the rule. Otherwise the court would have had no control over her. Cresswell v. State, 14 Texas Crim. App., 1; Bullock v. State, 73 Texas Crim. Rep., 424. Assuming that she was under the rule, we are aware of no authority which would withhold from the trial judge the discretion in a proper case to accompany permission to talk to a witness by reasonable condition. ■ The facts revealed by the bill do not show an abuse of such discretion.

Attached to the motion for rehearing is the affidavit of a person named Teel to the effect that the. sheriff had told him that if any person went upon the witness-stand and testified against the reputation of the prosecutrix, he would be taken to jail. The pertinency of this is not made plain. Teel was not a witness, nor is it claimed that he knew any relevant facts.

Finding no error, the judgment is affirmed.

Affirmed.

Citation profile

How this case has been treated — in progress