The offense is rape; the punishment, fifty years.
The sole contention of appellant is that the evidence is insufficient to support the verdict. This requires a resume thereof.
The mother and father of prosecutrix testified that they stopped at a tavern in the city of San Antonio at 5:30 p.m. on December 22, 1950. The two of them with a baby went inside and left their three remaining children, Allen, aged six; Billy, aged five; and Deborah, aged two, in the automobile. Further, that at 5:45 p. m. Billy came inside and reported that a man had taken Deborah. The police were notified, and an officer testified that the child was found shortly after seven o'clock the same evening adjacent to a vacant lot in a different part of town. According to the officer, her clothes had been torn off, except a small piece of clothing hanging from her shoulder; her face was bruised, and blood was coming from her private parts. The doctor who examined the child testified *Page 249 that her hands, lips and face had been bruised; blood was on the lower part of her abdomen and down her legs, which had come from a tear in the vagina extending to the margin of the rectum. He stated further that this injury had been caused by a penetration into the vagina by something other than an instrument.
Because of the inability of the prosecutrix to testify, even though the State introduced a voluntary statement from the appellant, the trial court submitted the case as being one based upon circumstantial evidence.
Appellant testified, disavowed the confession, sought to establish an alibi, and told of 'nervousness' following his service in the armed forces.
Allen, the six year old brother of the injured child, identified appellant as the man who had come to his father's car and carried Deborah away. He further testified that he had sent his brother Billy in to notify his parents.
The State offered testimony that appellant had, shortly before the child was missed, been engaged in a Christmas drinking and gambling party at a plumber's shop near the scene of the abduction. The proprietor of the tavern in question testified that appellant came into his establishment at 5:45 or 5:50 p.m. on the evening of the abduction, described his manner of dress, and stated that he tried to cash a $55.00 check.
Officer Garcia testified that at 6:45 p.m. on the day in question he was called to investigate a collision which had occurred with a parked automobile in a different part of the city and that upon arriving he found a Mercury hub cap and the rim from a headlight. Further, that immediately after leaving this investigation, and in the same vicinity, he had found the injured child.
Other officers investigating the rape testified that on the same night they went to the house of appellant and found a Mercury automobile from which one hub cap and one headlight rim were missing. These officers testified that they later took the seat cover from the front seat of appellant's car and by tests established the presence of human blood on the right hand portion thereof.
It will thus be seen that, independent of the confession and the identification of the appellant by the prosecutrix' brother, the State offered testimony placing the appellant at the scene of the abduction at the time the child was taken. It will be further noted that appellant's automobile was shown to have been in a different part of the city near where the child was found just prior to the discovery of the child.
The State amply established the voluntary nature of the confession taken in appellant's own words, and therein we find the following: 'I went in the house and filled the bath tub full of warm water and got the kid in the bath tub with me. It became clear to me what I had done when I got into the tub and after I had done what I had done. I saw that the water in the tub was bloody and that the little kid had blood on her. I do remember seeing blood on my shorts but I don't remember whether I saw any blood anywhere else. I guess that there was blood around my penis because I know I done it and there just ain't no getting around that. Why I done it I don't know. I just had the urge to hurt her.'
We hold the above to have established penetration and the crime of rape.
Finding no reversible error, the judgment of the trial court is affirmed.
On Appellant's Motion For Rehearing