
    Ex Parte John W. Hathorn.
    No. 23273.
    Delivered October 31, 1945.
    The opinion states the case.
    
      C. D. Bourne, Jr., of Dumas, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   BEAUCHAMP, Judge.

This proceeding was instituted in the District Court for the purpose of having the court fix bail for appellant pending his trial on a charge of rape. The court refused to grant bail and the case comes to this court on appeal with statement of the facts introduced at the hearing.

The alleged victim was the thirteen year old daughter of appellant. According to the testimony of the prosecutrix, her mother was present in the room and either consented or but mildly objected to the conduct of the accused. It will not be necessary to review the facts. When arrested, appellant signed a statement admitting the charges made, together with numerous other acts than that alleged. Upon a hearing in this proceeding he denied them in toto, and detailed the story of their married life which, he said, had lead him to the conclusion that he would take whatever “rap” his wife and the daughter wanted to give him.

That a jury would give the evidence by the prosecutrix, or that of the accused, full faith and credit is inconceivable. The facts are too revolting and unnatural. The State’s Attorney concludes his brief with the following statement: “We are inclined to seriously question the sufficiency of the proof to lead one to a well-guarded, dispassionate conclusion that the accused is guilty of the offense charged, and that, in all probability, he will be punished capitally therefor.” We concur in that view.

The judgment of the trial court is reversed and the relator is ordered discharged upon executing bond in the amount of Five Thousand Dollars.  