
    PETTY v. STATE.
    (No. 7168.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1922.
    On Motion for Rehearing, March 28, 1923.)
    I. Criminal law &wkey;?l 153(3) — Permitting state to introduce evidence after defendant closed a matter of discretion,
    . .The trial court's latitude in the order of introduction of testimohy is almost unlimited, and, unless there be affirmative showing of some injury or probability thereof in permitting the state to introduce evidence after defendant has closed, the appellate court will not ordinarily review the court’s action, in View of Vernon’s Ann. Code Cr. Proc. 1916, art. 718.
    On Motion for Rehearing.
    2. Rape <&wkey;>7 — Proof of penetration essential.
    To constitute the offense of rape under Pen. Code 1911, art. 1067, proof of penetration is absolutely essential.
    3. Criminal law (&wkey;56l (2) — Rape &wkey;5l(3)— Penetration may be proved by circumstances, but miist be proved beyond reasonable doubt.
    In the absence of direct evidence of penetration, it may be proved by circumstances, but it must be proved beyond a reasonable doubt.
    4. Rape <&wkey;>52(2) — Evidence held not to- exclude every reasonable hypothesis than guilt.
    In prosecution for rape of a girl under the age of consent, where the state relied, in chief, on evidence of a witness who stated he had seen an act of intercourse between defendant and prosecutrix, which was denied by defendant, and thereafter the state called prosecutrix, who denied penetration, the evidence did not exclude every reasonable hypothesis save that of guilt.
    - Appeal from District Court, Ellis County; W. L. Harding, Judge.
    George Petty was convicted of rape on a girl under the age of consent and he appeals.
    Reversed and remanded.
    Tom Whipple, of Waxahachie, for appellant!
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Ellis county of the offense of rape upon a girl under the age of Consent, and given five years in the penitentiary.

There was abundant evidence showing numerous occasions on which the appellant met the little girl in question, who was but 14 years of age, and took her out riding in his car. Appellant was a married man. One witness testified positively to seeing an act of intercourse . between appellant and pros-ecutrix. Two physicians who examined the child said that her private parts were enlarged so as that she could easily have had intercourse with a man.

There is but one bill of exceptions in the record which presents appellant’s objection to the introduction of the girl as a witness after appellant had himself testified, it being objected that this was not rebuttal evidence. The latitude given to our trial courts in the order of the introduction of testimony is almost without limitation, and unless there be an affirmative showing of some injury or the probability thereof from the action of the court in. allowing the state to introduce evidence after the defendant has closed,- - we will not ordinarily review the action of the court below. See. article 718, Vernon’s C. C. P., and authorities cited; Hewitt v. State, 10 Tex. App. 506; Mancha v. State, 57 Tex. Cr. R. 335, 123 S. W. 129. An examination of the testimony of the witness complained of reveals the fact that much of her testimony was in rebuttal. Appellant positively affirmed that he had never driven her out in his car but three times, and that he had never hugged her or kissed her, or indulged in familiarity with ber person. She contradicted him upon each of the above questions.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORItOW, P. J.

The subject of the alleged rape was Minnie Bryant, a girl under the age of 15 years.

To prove the act of intercourse upon which the prosecution is founded, the state relied upon the testimony of one McOaulley. From his testimony it appears that he owned a meat market, and that on various occasions he had seen the appellant and the girl in question meet on the street at a point near the market; that he had seen them having these meetings for two or three weeksthat appellant would be driving an automobile on these occasions, and a number of times he had seen her get into the car and ride with the appellant; that on other occasions he had met the appellant and the girl while they were riding on the road; that he had seen them some five or six times as he went back and forth; that on, or about the 13th of September, he saw them in the automobile close to the slaughterhouse across the T. & B. V. Railroad tracks, about 100 yards. They were on the back seat “loving” one another; that he then saw her lie down on the seat; that he apparently saw her unfasten her supporters and lie down on the seat, and saw the appellant open his trousers, and saw him on top of her; that-he could see their motions; that when they got through, they took a handkerchief and dried themselves off and threw is out of- the car; that the automobile was standing near a slaughter pen.

A doctor testified that he had made 'an examination of the vagina of the girl and found the parts in a condition indicating that she had had intercourse a number of times with some one; that is, that the vagina was in a condition which indicated that some object had passed into it a number of times; that he could not say that it was a male organ; and could not say that it was not due to masturbation. Another doctor testified to a similar state of facts.

Appellant testified that he had been riding with the girl on one occasion;- that she had requested him to let her ride in his car. He denied having had improper relatiSns with, her.

The prosecutrix was introduced in rebuttal and testified that she had been out riding with the appellant a number of times; that he had kissed her on a number of occasions That part of her testimony directly relating to the offense in question is as follows:

“A. Well, I guess he was trying to have intercourse.
“Q. Don’t you know? A. Well, yes.
“Q. What was he trying to do? A. To have intercourse.
“Q. What was he doing? A. Well, I said he was trying to have intercourse; but he didn’t.
“Q. He did not? A. No, sir.
“Q. Did he have his arms around you then? A. No, sir.
“Q. When you met him at McCaulley’s plac.e of business down here at Kaufman and, East Main, would he always bring you back there? A. Tes, sir.
“Q. When you met him at the post office, would he always bring you back to the post office? A. Yes, sir.
“Q. Would you always meet him first at Mc-Caulley’s when you went riding with him? A. Yes, sir.
“Q. At the time you say he was trying to have intercourse with you, was that with your consent? A. Well, yes.”

The state relied upon the theory that the offense was committed at the place described by her and the witness McOaulley. The witness Minnie Bryant' testified that she had been riding with appellant quite a number of times; that she had met him as testified by the witness on several occasions and had ridden in his car. The state then categorically inquired of her whether she had been at the point between the T. & B. Y. Railroad and the slaughterhouse described by the witness McOaulley. To this she replied that she had been there one time and only one time. The reading of her testimony leaves no doubt in the mind of the writer that the occasion to which she adverted is the one upon which the state relied. The writer is unable to reach any conclusion other than that stated; that is, that she and McOaul-ley testified to the same transaction. The state’s witness, the alleged injured party, not only denied the acts of intercourse, but testified to a state of facts which- are not inconsistent with the circumstances detailed by the other state witnesses, but are consistent with the innocence of the appellant of the offense charged.

If the conviction was for the offense of assault to rape, the ‘evidence would support the conviction, but to constitute the offense of rape, proof of penetration is absolutely essential. Penal Code, art. 1067; Branch’s Ann. Tex. P. C. § 1803; Duckworth v. State, 42 Tex. Cr. R. 74, 57 S. W. 665; Blackmon v. State, 87 Tex. Cr. R. 173, 220 S. W. 93. And in the absence of direct evidence of penetration, it may be proved by circumstances. Dies v. State, 56 Tex. Cr. R. 36, 117 S. W. 979; Word v. State, 12 Tex. App. 183. But it must be proved beyond a reasonable ‘doubt. Davis v. State, 43 Tex. 189.

In the instant case, the state, in its case in chief, relied upon circumstantial evidence. While the appellant, in rebuttal, introduced nothing more than a denial, the state, apparently not satisfied with the strength of its case, introduced the alleged injured party, and she denied the penetration. She admitted the fondling and the effort on the part of the appellant to have intercourse with her, but she denied the accomplishment of the act. Testifying under the sanction of the state, who introduced her as a witness, she, by her direct evidence, combated the essential element of the state’s case to establish the offense of which the appellant is convicted. This court, in the case of Draper v. State (Tex. Cr. App.) 57 S. W. 656, dealing with a case in which the prosecutrix testified to penetration, held the evidence insufficient, in view of other facts which were developed by the record, and referring to the case of Gazley v. State, 17 Tex. App. 267, stated that all authorities agree that great caution should be exercised in cases of this character. In Blair’s Case (Tex. Cr. App.) 56 S. W. 622, the prose-cutrix, a girl under 15 years of age, testified in the first instance in favor of the theory of the state. She followed this with a denial of the truthfulness of her statement. The court said:

“This leaves the record before us in such condition that we cannot permit the verdict to stand without other proof on the question of penetration, which is an absolutely essential requisite to all prosecutions for rape.”

In the case of Galaviz v. State, 82 Tex. Cr. R. 379, 198 S. W. 946, there was a similar state of facts. The prosecutrix testified that there was penetration and then contradicted herself upon this subject. It is, of course, true that, generally speaking, self-contradiction of a witness will not, as a matter of law, destroy his testimony. Hill v. State (Tex. Cr. App.) 77 S. W. 808; Blackmon v. State, 87 Tex. Cr. R. 173, 220 S. W. 93, and authorities therein cited.

The instant case does not rest upon the matter of self-contradiction. The injured party does not admit and then deny the penetration, but her testimony is confined to a specific denial, a definite refusal to admit it., The admission she does make is consistent with the circumstances detailed by the state’s witness, to the effect that he saw the girl and the appellant in the automobile in the position which he described. All that he said may be true, however, and still there may have been an absence of penetration. He testified to circumstances consistent with the guilt of the appellant, but when taken in -connection with the positive denial, through the direct evidence of the injured party, the evidence does not exclude every reasonable hypothesis save that of his guilt.

Upon the record before us, we are of the opinion that the trial court should have granted a new trial. Because of his failure to do so, the motion for rehearing is granted, the affirmance set aside, and the judgment is reversed, and the cause remanded.

HAWKINS, J.

(concurring).

I agree to the reversal of the judgment for the following reason: Prosecutrix refers to a transaction in which she admits that appellant attempted to have intercourse with her, but according to her statement fell short of its accomplishment. It is not at all clear to my mind whether this is the same or a different occurrence to that testified to by McCaulley. If the same, it is not inconsistent with his story, but positively denies the completed act, which might be inferred from the circumstances related by him; if a different transaction, then the state is in no better condition. The prosecutrix positively denies any act of intercourse with appellant at any time. She may not have spoken the truth, but the state tendered her as a witness along with McCaulley. By the one it builds its case up, and then straightway by the other tears it down. The legal objections to sustaining a conviction under such circumstances are sufficiently adverted to by Judge MORROW in what he has written.

LATTIMORE, J.

(concurring).

My Brethren are of opinion that the action of the state in introducing the alleged injured female resulted in a condition from which a reversal herein must be ordered. In other words, the state having made out its case by other testimony, made a serious mistake in placing upon the stand the girl who, in the opinion of my Brethren, denied the fact of intercourse. Eor this reason they think it necessary to reverse the case. I have again considered and' reviewed the facts, with the result that I am but further convinced of the correct decision of the case in the original opinion, as far as its facts are concerned. However, the difference between us being one based wholly on divergent views as to the effect of the testimony, I do not deem it necessary to dissent, but content myself with affirming my belief in the correctness of the original opinion. 
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