Offense, assault with intent to rape; penalty, two years in the penitentiary.
The testimony of prosecutrix in brief is substantially as follows: That appellant attacked her at her home while she was alone, intimidating her with a pistol and forcing her to lie down on the floor where he had or attempted to have carnal intercourse with her. Her testimony is somewhat doubtful as to whether there was a penetration. An attending physician, who was called shortly after the *Page 54 offense, testified to finding a laceration of her private parts and to the presence of what he took to be semen in her vagina. Appellant lived with his father a short distance away and a chain of tracks led from near the scene of the alleged offense across the field in the direction of appellant's home. The parents of prosecutrix arrived at home within about thirty minutes after the alleged offense and found her crying and she at that time complained to them of the outrage committed upon her. Some of her undergarments were shown to have spots of blood on them.
Appellant's defense was an alibi, testified to by several witnesses.
There was no issue made on the trial below apparently as to the consent, either express or implied, of the prosecutrix, the issue being as to the presence of the accused at the scene of the crime. The trial court charged the definition of "force" in the language of Art. 1184 of the Penal Code. Under the facts of this case appellant's exception that such definition required the use of less force than the law contemplates is without merit. There being neither in the evidence of prosecutrix nor in the circumstances of the case any issue as to lack of resistance, the definition as given by the court was sufficiently explicit. Anschicks v. State, 6 Tex.Crim. App. 534; Favors v. State, 20 Tex.Crim. App. 161; Branch's P. C., Sec. 1780.
Complaint is made of the reception in evidence of the statements of prosecutrix made to her father and mother while she was crying and nervous and within thirty minutes of the time of the alleged commission of the offense and at the place where same was committed, on the ground that this was hearsay. A part of this was admissible as showing recent outcry. Underhill's Criminal Evidence (2nd Ed.), Paragraph 612; Branch's P. C., Sec. 1784; Lights v. State, 21 Tex.Crim. App. 314. In these statements she named appellant as her assailant and stated that he went out across the field where officers afterwards found a chain of tracks, already adverted to. All of this testimony was so connected in point of time and place with the offense and evidenced such a degree of instinctiveness as to make it admissible as res gestae. Authorities supra.
We have examined all of appellant's complaints and finding no merit in any of them, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 55
ON MOTION FOR REHEARING.