We have considered the record in this case in the light of appellant's very earnest motion for rehearing and, while the argument presented must appeal to any right-thinking mind, it is, nevertheless, on the weight of the evidence and appropriate only for the consideration of a jury. It is the duty of this court to consider all of the testimony in the case where the question presented to us is insufficiency of the evidence to support the jury's finding. This we did in the original opinion. Concluding that there is direct and positive testimony showing the perpetration of a brutal crime, it is inevitable that appellant's denial of this testimony only raises an issue for the jury. *Page 334
There are circumstances of this case which a jury should weigh, and likely did, in considering the evidence both for and against appellant. The jury would have been justified in believing appellant's story and of acquitting him for the crime, but they did not do it. Appellant's counsel is probably justified under all of the facts of the case in presenting the argument that the prosecuting witness is not an admirable character. No doubt he presented this same argument to the jury of twelve men who were in better position to understand the force of it after having heard both parties testify than this court could possibly be. It is noted that the record also reveals from the appellant's own testimony that he was a gambling negro who had spent most of the night in playing poker with both negroes and white folks. His story of the invitation of an eighteen year old white girl to spend the rest of the night with her and the detailed story of her solicitations is so shocking that it is not surprising a jury refused to believe him. It is so unnatural that one could hardly expect twelve men to agree to its truthfulness unless it was strongly corroborated. So far as we are able to tell from the record of the case there is nothing to do this. The acts of the prosecuting witness on the following day are also unnatural, but they consist more of her failure to do than of anything affirmatively indicating the falsity of her story. Consequently, the jury was warranted in concluding that the circumstances surrounding her explained and excused her failure to tell about it until the return of her employers late in the afternoon. We find nothing contradictory and all of the facts were before the jury for their consideration.
The evidence of Dr. Wyatt in describing the physical facts which he discovered do not in any sense contradict the story which the prosecuting witness gave because the force which she described consisted solely of striking her and in threats to take her life while appellant had the pistol in his hands or available to him and was in position to carry out his threats. She described nothing that would indicate the kind and character of force which Dr. Wyatt had in mind when he said he found no evidence of it.
Appellant is referred to as a helpless negro boy in the hands of an attorney appointed by the court to represent him, but the record discloses that he was ably represented in the trial court, as well as before this court. It will also be noted in explanation of the apparent unnatural conduct of the prosecuting *Page 335 witness that she was situated in a very unfavorable position. It is likely she felt she could have no sympathy or assistance from those near her and the evidence fails to reflect that she did have any such assistance at any time from any of them other than Mrs. Kuhn who was not present until late in the afternoon of the next day.
While the whole story of the case is one that is unfavorable for the infliction of the death penalty because of the things discussed in the original opinion and herein mentioned, still, the issue is a matter exclusively within the province of the jury. Unless there is an error of law or a lack of sufficient evidence upon which a jury may, as a matter of law, find the appellant guilty, this court is intrusted with no responsibility or power in the matter. As we view it, that is the situation and whatever appeal there may be in the record is by our law delegated to the sound judgment and discretion of another agency of our government.
Finding no error of law, the motion for rehearing is overruled.