Appellant was given the death sentence for rape of Mrs. Mattie Hallmark.
The occurrence is stated to have taken place at about 7:30 A.M. down in the big woods in the lower part of Walker County, Texas. The prosecutrix lived with her husband and three children in a logging camp; most of the people in said camp were negroes. Several *Page 498 white witnesses who lived at said camp testified that prosecutrix associated mainly with the negroes and that the white people had very little to do with her; also that her reputation for chastity was bad; that she was seen in company with negro men who would stop at her house and from whom she would bum cigaretts and smoke, and laugh and carry-on. Her story of the rape was that on the morning it occurred, appellant came to her box car house and asked where the old boss was, meaning her husband and she told him he was at the corral. The corral was about one hundred yards from her house. A Mrs. Millwee, a white woman lived with her family about twenty steps from the prosecutrix. Further on beyond Mrs. Millwee's, about one hundred yards from prosecutrix, there lived a negro family; about 150 Yards in the other direction from prosecutrix there lived another negro family. She says that all these people were at home when the rape occurred. She testified that shortly after appellant came to her house and asked her about her husband that she went into the bushes near the corral to attend a call of nature. On her way back to her house, and when at a point about fifty or seventy-five yards therefrom, and in plain sight of her house, she says appellant appeared and that she saw he was going to catch her and she said: "Oh Lord, Richardson, run here quick." What tone of voice she said this in is not disclosed by the record. She further says that appellant told her to hush or he would cut her damn throat; that he had a knife and a stick; that he caught her this way (way not indicated), and put his other arm about her shoulders and carried her out into the woods and had sexual intercourse with her. She does not tell anything about resisting or refusing to have sexual intercouse with him after they got into the woods, but does say she resisted when he was carrying her or leading her out into the woods. She said after he accomplished his purpose he ran off, and that she went back to camp screaming; that on the way back to camp her husband met her. She also says that when she went into the bushes just before that, she left her three children in the box car, the oldest being a girl about twelve years old. The husband of prosecutrix testified that he was at work about one hundred yards from home that morning; that the first he knew of the trouble he heard his wife call him and he went to meet her and she told him a negro man overpowered her "and took it away from her." The sheriff of the county swore that the husband of the prosecutrix told him when he came there about eleven o'clock that his wife had been caught and slapped by a negro, but that the said husband told him that the negro did not accomplish his purpose. The husband denied making this statement to the sheriff. There is no suggestion from the husband that his wife was crying or excited or showed anything unusual in her appearance, or giving any of the other evidences naturally to be expected of a woman who had just been outraged, other than that he says he heard her calling. The next-house *Page 499 neighbor, Mrs. Millwee heard and saw Mrs. Hallmark as she came back and there was not enough in her appearance or what she was saying to even cause Mrs. Millwee to go out where she was, nor was Mrs. Millwee on the stand asked to detail anything in her appearance or any statement that she made. None of prosecutrix's clothes appeared to have been torn, and outside of her husband's statement that there appeared to be some bruises on her person, there was not anything in evidence to corroborate her in any way. She says she walked part of the way down to the place where the act of intercourse took place.
It is truly remarkable that a woman physically strong weighing 120 pounds, and knowing herself to be in such easy calling distance of so many people, in the daytime, without apparently any tears or excitement, could be raped by a negro.
Appellant was without money or friends and the trial court appointed counsel to defend him. He was given the death sentence and the case had been pending in this court many months when the writer of the opinion came upon the bench. We have carefully considered the record in all its different aspects. We are fully aware of the feeling that exists in the breast of every white man for the sanctity of the home, and the virtue of woman, when he hears that a black man is charged with an offense of this character against a white woman. We believe that grave care should be exercised in such a case lest the judgment be swayed by passion. The character of prosecutrix, the peculiar circumstances surrounding the case, the severity of the penalty, are matters that appeal to us with such force as to cause us to deem it best to let another jury pass on the facts.
The judgment is reversed and the cause remanded for another trial.
Reversed and dismissed.
ON REHEARING. June 25, 1919.