The appellant in this case was tried under an indictment charging him with rape, and was convicted of an attempt to rape, and his punishment assessed at two years in the penitentiary; and from the judgment and sentence of the lower court he prosecutes this appeal.
It appears from the evidence in this case, that on the evening of March 10, 1894, four negroes were riding along the public road from *Page 506 Elgin, in the county of Bastrop, to their homes. About a mile and a half from Elgin, as two of them testify, in a little gully a short distance from the road, in plain view, they discovered a man lying on top of a little girl. They passed on, making some remark about it, and when they had proceeded about fifty yards they rode back. The man was still on the little girl. They upbraided him for his conduct. He got up off the little girl, and buttoned his pants up. The little girl got up, and pulled up her drawers. The man, whom they identify as James Bozeman, the defendant in this case, approached them and an altercation ensued, the defendant cursing and abusing them. One of the parties, Pollard, stated that he would go and report him and have him indicted. The parties separated, three going on towards their homes, and said Pollard going back to Elgin to report the affair; the defendant and the alleged injured party, Beulah Bozeman, his little sister, following on after the three men, going in the direction of his sister-in-law's, which was not far off. This was the State's case.
On the part of the defendant, it was shown that the parts of the little girl were thoroughly examined that night, only a few hours after the alleged occurrence, and no wounds, bruises, or abrasions whatever were found on her privates or about them. The defendant himself testified, that he was on his way to his sister-in-law's, who on that evening was sick, and had gotten him to go to his mother's, who lived about a mile or a mile and a half distant, to get his little sister to come and take care of her baby; that after getting his little sister Beulah, who was 8 years old, while en route back to his sister-in-law's, she had occasion to step aside to answer a call of nature. She went some little distance from the road, and pulled her drawers down, when the negroes came along, and she ran to him, and that this was all that occurred. He denied that he had her down or that he was on top of her. Beulah, who was also on the stand, agreed with his testimony. The proof showed, that the defendant was 19 years old, was about six feet in height, and weighed about 165 pounds; that Beulah was only 8 years old, and small for her age. The doctors testified, that it was impossible for a man of that size to have penetrated even slightly the parts without greatly lacerating and wounding them. The mother of the alleged injured party also testified, that when the little girl came home, and she was informed of the occurrence, she examined the little girl's clothes carefully, and that her clothing or parts showed no indications of anything wrong. It was also shown, that the place of the alleged rape was close by the road, in plain view, the gully being very shallow at that point. A short distance below it was much larger, and would have concealed persons. Besides, in a short distance there were thickets.
The appellant contends, that the court erred in refusing to entertain its motion to require the State to put the witness Beulah Bozeman on the stand, as she was the alleged injured party. While there may be *Page 507 cases in which such action of the court might be invoked, yet in this particular instance we see no error in the action of the court.
The appellant also contends, that the court erred in refusing to permit the defendant to introduce the statement of Beulah Bozeman, the alleged injured party, made a few days after the alleged occurrence, in the preliminary examination. The State offered evidence in this case, the tendency of which was to impeach the testimony of said Beulah by showing declarations that she made, subsequent to the alleged occurrence, inconsistent with her testimony given at the trial. In such a case it was proper to have admitted the testimony taken before the magistrate in rebuttal of said impeaching testimony, and the court erred in excluding same.
In this case the most material error presented in appellant's assignments is, that the evidence in this case is not sufficient to sustain the verdict. We have heretofore set out all the testimony that is material; and the question that now presents itself for our decision is, does said testimony show an attempt on the part of the appellant to commit rape on the person of the little girl, Beulah Bozeman? According to the testimony of the State's witnesses, the alleged attempt must have been carried on for a considerable space of time, for they saw the persons, according to their statement, in the act some distance (a hundred or two yards) before they got to them. They rode past them, the defendant seeing them at the time; and after they had proceeded some fifty yards, rode back, and he was still engaged in the attempt. There are no indications of any struggle or opposition on the part of the alleged injured party; but evidently, for the space of some minutes, this man, weighing 160 pounds, without opposition, was afforded an unobstructed opportunity to gratify his passions; and to believe that he was seriously attempting to commit a rape on the little girl, and that he left no signs or indications whatever upon her parts, challenges our credulity. Nothing short of a determined attempt to have carnal knowledge of the alleged injured female suffices to constitute this offense, and no matter what else the defendant may have been doing of an improper character, if he was not endeavoring to accomplish the act of carnal intercourse, he could not be convicted of this offense; and leaving out of consideration the denial of the defendant and the witness Beulah, and conceding that the witnesses for the State speak the truth as to the occurrence, and taking their testimony in connection with the testimony of the physicians (which is not gainsaid or denied), we fail to find sufficient evidence to sustain this verdict; and the judgment of the lower court is accordingly reversed, and the cause remanded.
Reversed and remanded.
Judges all present and concurring. *Page 508