Appellant was convicted in the District Court of Colorado County of rape upon one Mrs. Burnett, and his punishment fixed at death.
Appellant is a negro boy and lived in the same neighborhood as Mrs. Burnett. On the night of the alleged rape she was at home alone. After she had retired and gone to sleep she was awakened by the presence of a man in her room. The man jerked her out of bed, and she said she fell on her face on the floor, in which position she remained during a protracted struggle with her assailant. In reply to a question asked by the State's attorney, she said that her private organ was penetrated by that of her assailant. The appellant did not take the stand and testify. The case was one of circumstantial evidence, the State relying upon the fact that the party assaulting Mrs. Burnett was a negro and spoke Spanish, and was bare-footed, and that Mrs. Burnett bit him on the finger during the struggle, and reaching over her shoulder, caught him by the hair and pulled out some of his hair, it being further shown by the evidence that barefoot tracks were found the next day under her window corresponding to tracks made by appellant, and that it appeared that a part of appellant's hair was gone in the front part of his head where he wore it long, and that he spoke Spanish, and that when arrested on the same night he had a wound on his finger which a doctor said, in his opinion, was the result of a bite. This court confesses to some reluctance in the affirmance of this case because mainly of the fact that the testimony appears slight upon the question as to whether or not there was penetration of her by the private member of the appellant. She testified that she lay upon her face during the entire occurrence, and that appellant was struggling with her and holding her down, and was upon her back and over her while the struggle was going on. There appears in the record but slight examination of the woman on the subject of penetration, and this added to what might seem the physical difficulty, if not improbability, in case of resistance, of penetration from the rear, and also the likelihood that in her excitement or fright, she might have been mistaken in her statement to the district attorney that she was penetrated, causes us to hesitate. However, we do not feel willing to permit such feeling of reluctance to lead us to the unwarranted length of reversing this case. There is but one bill of exceptions to the introduction or rejection of evidence. It appears that after the physician had testified *Page 47 that in his opinion the wound on the finger of appellant was the result of a bite, he proceeded then to state his reason for said opinion. No objection having been made to his statement as to what caused the bite, we think it competent for him to explain his reasons for arriving at such conclusion.
An exception was taken to the charge of the court because of the fact that it failed to instruct the jury that in a case of circumstantial evidence the circumstances must exclude every other reasonable hypothesis except that of the guilt of the accused, and a special charge was presented to the trial court including in it this omitted portion of what ordinarily appears in such a charge. The charge on circumstantial evidence was as follows:
"To connect the defendant with the alleged rape charged in the indictment, the State relies wholly on circumstantial evidence, and you are instructed that to warrant a conviction on such evidence, each fact necessary to the conclusion sought to be established must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to such conclusion must be consistent with each other and the main fact sought to be proven, and the circumstances, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty that the accused, and not another person, committed the offense charged. If the evidence in this case fails to establish, beyond a reasonable doubt, any link in the chain of circumstances necessary to connect the defendant with the commission of the crime charged (if there be such chain of evidence proven), you will acquit the defendant."
It will be observed that this does not instruct the jury that the circumstances must exclude every other reasonable hypothesis except that of the guilt of the defendant. Mr. Branch on page 1042 of his Annotated P.C., cites various authorities holding that where the charge on circumstantial evidence requires the jury to find that "no other person committed the offense charged," this is equivalent to instructing said jury that the circumstances must exclude every other reasonable hypothesis except that of the defendant's guilt. We have examined the authorities cited by Mr. Branch in support of the text and are of opinion the test of exclusion which is laid down by all of the authorities as necessary in a charge on circumstantial evidence, is met by the use of the words above referred to.
Finding no reversible error in the record, the judgment of the trial court will be affirmed.
Affirmed. *Page 48
ON REHEARING. December 6, 1922.