
    ERVIN v. STATE.
    No. 20237.
    Court of Criminal Appeals of Texas.
    March 1, 1939.
    Horace Moore, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, death.

■ On the 19th of June, 1938, Mrs. Eula Buie was living alone in the City of Fort Worth. According to her testimony, appellant, who is a negro, entered her home about daybreak and ravished her. She was sixty-four'years of age'at the time and had been ill during the night. In accomplishing his purpose appellant threatened to kill her, and when she resisted he choked her until she .felt that she could “never breathe' again.” She attempted to scream and did everything in her power to prevent the outrage. Notwithstanding the utmost resistance upon her part, appellant succeeded in having an act of sexual intercourse with her. Before leaving the house appellant forced her to give him what money she had.

" Immediately after appellant left the house Mrs. Buie notified the officers and a physician. The physician testified that his examination showed that she had been recently penetrated. The testimony of the officers was to the effect that they found blood in the house.

The state introduced in evidence ap- ■ pellant’s voluntary statement in which he admitted that he entered the home of Mrs. Buie on the occasion in question. However, in said statement he denied that he had had sexual intercourse with her.

Appellant did not testify.

The court gave a charge covering the exculpatory declaration embraced in appellant’s .voluntary statement.

No bills of exception are brought forward and no exceptions were leveled at the charge of the court.

The evidence is sufficient to support the judgment of conviction.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  