1. Rape — Special Instructions. — See special instructions requested by the accused on a trial for rape, with regard to the manner in which the jury were to consider and weigh the testimony of the prosecutrix, and charging them to acquit in the absence of direct evidence or corroborating circumstances, held, clearly upon the weight of testimony, and violative of the inhibitions of the statute in that respect.
2. Same — Uncorroborated Evidence of Prosecutrix. — On a trial for rape, the question as to whether or not the prosecutrix has been corroborated is one appertaining to the effect and sufficiency of the evidence, and is not a question of law.
3. Same — Expert Testimony. — On a trial for rape, it was not error to permit a physician to testify to an examination of the prosecutrix made by him more than two months after the alleged rape, and his discovery by said examination that the vagina had been entered by the male organ, or some foreign substance.
4. Same — Evidence Offered in Rebuttal, when. — Practice on Appeal. — Article 661 of the Code of Criminal Procedure expressly provides that the court shall allow testimony to be introduced at any time before the argument of a case is concluded, if it appear that it is necessary to a due administration of justice. Held, the exercise of discretion in allowing such evidence will not be revised on appeal unless it reasonably appears that it has been abused.
5. Bill of Exceptions, Requisites and Sufficiency of. — A bill of exceptions as to the exclusion of evidence, to be entitled to consideration, must be so full and explicit that the matters presented for revision may be understood without recourse to inference. Inferences will not be indulged to supply omissions in a bill of exceptions.
6. Misconduct of Juror as to Statements in Jury Room. —
Held,
7. Conflicting Evidence — Practice on Appeal. — Where the evidence is sufficient, but is directly conflicting as to the guilt or innocence of the accused, the court on appeal will not interfere with the verdict.
DAVIDSON, JUDGE.
This conviction was for rape, the punishment being assessed at confinement in the penitentiary for a term of twenty-five years.
Appellant requested the court to instruct the jury, in effect, that the prosecutrix is a competent witness, but her credibility and the credence to be given her evidence is a matter for the determination of the jury, and her credibility depends upon the facts and circumstances adduced in evidence; and if her testimony is unsupported by other evidence, her credit would thereby be weakened; and while a conviction may be had upon her uncorroborated statement, yet in such case special scrutiny and a careful weighing of the facts is demanded, and all the circumstances and probabilties, near and remote, should be carefully looked to, and in the absence of direct evidence or corroborating circumstances the jury should acquit.
The charges being refused, exceptions were reserved. In this there was no error. They were clearly upon the weight of the testimony, and therefore violative of the statute prohibiting the court from so charging. While courts have been cautious in sustaining convictions for rape upon the uncorroborated testimony of the ravished party, yet this is only the case when her evidence is suspicious in its nature or doubtful in its character. This goes, when the question is raised, only to the weight of the evidence. It is not a question of law, but pertains to the effect of the evidence.
The defendant having closed his testimony, the State was permitted to prove by Dr. Clifford that he, on the morning he was testifying, had made an examination of the prosecutrix, and had discovered the vagina had been entered by the male organ or some foreign substance. It was no objection to the admission of this evidence that the alleged rape had occurred two months or more prior to such examination; nor was the position well taken that the evidence was not admissible in rebuttal. Either party may be allowed to introduce testimony "at any time before the argument of a cause is concluded, if it appear necessary to a due administration of justice." Code Crim. Proc., art. 661. This exercise of the discretion of the trial judge in receiving evidence before the argument is concluded, will not be revised on appeal, unless it should reasonably appear to have been abused. Willson's Crim. Stats., sec. 2311.
Pending the argument, counsel for the defendant offered to reintroduce Clara Gonzales, wife of defendant, for the purpose of proving by her, that "on the Monday following Friday, August 25, 1893, she and Paula Boeck, the prosecuting witness in this case, washed Paula Boeck's underclothing, and there was no blood on them, and nothing unusual about them. That there had been no washing done by witness or Paula Boeck, who stayed at witness' house from the 25th of August until said. Monday, the 28th of August, 1893." This was offered "in view of Dr. Clifford's testimony, which was a surprise to defendant." As the matter is presented by the bill of exceptions, the ruling is not shown to be erroneous. It was wholly immaterial that Paula Boeck's "underclothing" were washed at the time stated, unless they were those worn by her at the time of the alleged rape. We are not to presume, in aid of the bill, that it was meant to point out the particular garments worn by the prosecutrix on the occasion of the alleged rape. Inferences will not be indulged to supply omissions in a bill of exceptions. Its allegations must be so full and explicit that the matters presented for revision may be understood without recourse to inference. Willson's Crim. Stats., secs. 2368, 2516.
If the juror Holmgreen made any statement to the other members of the jury in regard to the good character of the prosecutrix, it was after the jury had determined the defendant's guilt unanimously, and such statement could have had no possible effect upon any juror in arriving at his verdict.
It is urged that the evidence fails to support the conviction. If the evidence for the prosecution is true, defendant was unquestionably guilty. If the testimony for the defense was correct, he was not. The witnesses were before the jury, and their credibility was passed upon by that body. Where the evidence for the State proves the allegations in the indictment, and is sufficient to support the conviction, we do not feel authorized to reverse the judgment because the defendant's evidence is totally at variance with the State's case. We do not feel justified in setting aside the conviction on this ground.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.