
    Ben Rhem v. The State.
    
      No. 7286.
    
    
      Decided, May 27.
    
    Rape—Fact Case.—See the statement of this case for evidence held insufficient to support a conviction for rape.
    Appeal from the District Court of Travis. Tried in the court below before Hon. W. M. Key.
    This being purely a fact case, the evidence is given as contained in the statement of facts, and is as follows:
    Susie Atkins, the prosecutrix, testified for the State as follows: My name is Susie Atkins. I am thirteen years old. On the 13th of June, 1890, the defendant, Ben Rhem, made an assault upon me. He took hold of me and threw me upon the ground, and held me there by placing his left hand upon my shoulder, and with his right hand he pulled my legs apart and pulled up my dress, and unbuttoned his pants, and then got down on top of me, and had carnal intercourse with me by force and against my will and wish, and without my consent. He penetrated my sexual organ with his sexual organ. I was hallooing and kicking and trying to get away from him all the time, and he held me fast until he accomplished his purpose. I do not know how long he remained on me. I had never before this time had carnal intercourse with any man. This occurred on Peter Smith’s farm, in Travis County, Texas, on the 13th day of June, 1890. The witness, being shown two letters to which her name is signed, which were addressed to Ben Rhem, said: I did not write these letters and did not authorize anybody else to write them or sign my name to them. The first time I ever saw these letters was at the last term of this court, when this case was tried before, when defendant’s attorneys produced them in court and offered them in evidence as my letters. At that time I wrote a paper as showing my handwriting to the court and jury. This paper being shown the witness, she said that it was her handwriting, but that the two letters were not, and she said that she did not give those letters to her sister, Charity Box, to be delivered to Ben Rhem. Ben Rhem, the defendant, had been boarding and living in our family for several months before he raped me. My mother did not go out to the Smith farm when we went. She remained in Austin. Those who went were Ben Rhem, Sadie Atkins and Charity Box, who were my sisters, ■ and Jim Hall. We went there to chop cotton. We, Ben Rhem and myself, are both negroes. He had his gun with him when the rape was committed, as we were out hunting. I am afraid of him, though he did not make any threats. After he got through he told me not to tell what he had done to me, and I did not tell it when I reached the house, because I was afraid of him. When I came into town I told my mother about the rape. This was about ten or eleven days after the rape. The defendant is a grown man and I am a little girl. I promised Mm not to tell it, because I was afraid of Mm and afraid to tell Mm that I would tell it, and I was afraid to tell it. My sister, Charity Box, has carried the defendant his meals to the jail daily since his arrest. She threatened to kill me if I did not say that defendant did not rape me. Ben Rhem, nor no other man, ever had carnal intercourse with me except this one time when he raped me, as before stated. [The testimony above by Susie Atkins that her sister had threatened to kill her was given after her sister Charity had testified, and when Susie was called in rebuttal.]
    Cross-examined: I followed him when he went hunting. We got out into the big road—public road—and were going into the woods across the road, and I said: “Oh, no; that may not be Mr. Smith’s pasture; let’s go in here,” and me and defendant got over the fence into the other pasture. There were mesquite bushes in both pastures. Defendant, after we were out in the pasture some distance, wanted me to come and kiss him, and I wouldn’t do it, and he came and took hold of me, placing his left hand on my shoulder, and threw me down. Then took and put his left hand on my shoulder and pulled my legs apart with his right hand, and then pulled up my dress with his right hand, and he had intercourse with me, and I was kicking and hallooing all the time. He did not threaten me before to hurt me if I didn’t do it, nor did he threaten me afterward. He didn’t put his hand over my mouth. He never used the gun nor threatened to use it on me. I promised I would not tell any one, because I was afraid of defendant. He did not make me promise not to tell, but asked me what I was going to say. I was afraid of defendant. I was afraid to tell any one. I never told any one until about eleven days after I was raped. Tes, I went to the barn with Mr. Ben on Thursday, the day before I was raped, to get some wood and eggs. Tes, we were in. the barn. I got up two sticks. I was down stairs and defendant up in loft. I did not have intercourse with him then. Sadie Atkins, my sister, came and called me when we were in the barn. We, defendant, Jim Hall, Sadie Atkins, and Charity Box, all went fishing after dinner. I did not put my legs up over defendant when he was fishing. I was sitting beside him. He got up and went down the creek further. I did not follow him. We all slept in the same room—defendant, Jim Hall, Sadie Atkins, and Charity Box. I never went to see Mr. Allen, the lawyer, about getting him to defend defendant. I never told Mr. Allen I consented to defendant having intercourse with me. I didn’t say the reason I didn’t tell my ma about it was that I was afraid ma would whip me. I did not go to the court house until the day the habeas corpus was sued out, and at the trial before this. I never wrote defendant any letters of any kind at all. Tes, sir, I, defendant, Jim Hall, and Charity Box went out across the river to pick cotton on Mr. Medaris’ farm. I never had intercourse with defendant out there. One evening when Jim Hall and Charity Box went out somewhere we all slept in the same room of the house. I met defendant on the street—Congress Avenue, Austin—about two weeks after he raped me. My mother was present, and I said to him then, when she spoke to him about it, that he forced me. We—that is, defendant, Charity Box, my ma, Laura Sheppard, and myself—were treated by defendant to beer, and we all drank. I came back after the rape and my dress was not torn. I went out and sat down by defendant. He didn’t eat dinner then at regular dinner. I never sat in defendant’s lap on the 19th day of June celebration. Clara sat in his lap; I did not. I sat next to Clara. Defendant came back on the car and did not come back in the hack he went out in with us. He treated us out there. This was before I made the complaint. After we came back from Medaris’ farm I helped Charity Box wash our clothes we wore down at Smith’s ranch and those at Medaris’ farm. We all staid at home. My brother had me to go up and make the complaint against defendant as soon as I told of his raping me. I did not feel sore at all, but chopped weeds next day.
    State closed.
    Dr. Mussina testified for the defendant as follows: I am a practic- ’ ing physician; have practiced medicine for some twenty years. Lived in the neighborhood of the prosecutrix’s mother and grandmother. I was called by her sister Mary to examine her. I examined her, both by ocular and a digital examination, and there was no evidence of penetration by any one. The walls of the vagina were adhered close and were in a normal state or proper condition. She did not flinch from parts being touched in my examination of her. There was an exception that the hymen was not present. It was absent, which is the case often, even with virgins, and its absence is not alone evidence of intercourse. There can be a satisfaction of the male desire during an attempt to have connection without penetration, and as far as male organs are concerned they will know no difference as to whether there was penetration or not. There could have been a partial penetration in this case which would have left no visible evidence. Even such may happen without the displacing of the hymen had there been oné previous to the intercourse.
    Cross-examined: From the appearance of the girl’s sexual organ it was my opinion that she was a virgin, as I could not detect any evidence that she had been having connection with men. It is simply my opinion that the girl had never been completely penetrated. It is possible that penetration might have been accomplished once, and I not be able to detect it. They claimed that the assault was made some two weeks before I examined her.
    Sadie Atkins testified: Susie Atkins is -my sister. I was sent out to the barn to call Susie in to finish getting dinner, as Charity was sick. Susie went down to barn with defendant to get wood and eggs. I went to barn and called Susie, and then went in and saw defendant lying on top of Susie, and when I got there he jumped off and came to the door and buttoned up his pants, and Susie ran to the other side of the barn. This was on Thursday, down at Mr. Peter Smith’s ranch. After dinner we all went fishing—defendant, Susie Atkins, Jim Hall, Charity Box, and myself. Defendant was sitting down on the creek, fishing. Susie went up and sat down by him and put her legs over his legs, and he got up and went down the creek further and she got up and followed him, and he afterward got up and went to the house. Hext day was too wet to work in cotton, so defendant got a gun and went hunting, and I asked Charity to let me go with defendant; so we went out, and after hunting a while we came' back. Then dinner was not ready. Defendant got a gun and started out to hunt again. So Susie she, wanted to go, and she asked Charity, and she then ran and caught up with defendant and went out hunting. Can’t tell time they were out. I saw defendant coming back and Susie following him. She was not crying; never noticed dress, or her clothes. Defendant didn’t eat dinner—said he was sick. Dinner was not ready when he came in. Mr. Smith’s son, Mr. Frazier, and Charity Box were there when they came back from hunting. Susie never told any of us anything had been done to her. Defendant sat out on porch and Susie went out and sat by him. She walked as usual. We came in on Wednesday before the 19th of June, and we all went out in the hack to the grove, and Susie, defendant, Charity Box, Jim Hall, Clara, and my ma, Laura Sheppard, and myself went out together. Susie sat on the seat with defendant and Clara and myself, and Clara sat in defendant’s lap awhile, and Susie she leaned up over on his lap part of the time Defendant was with us part of the time and treated us out there. He did not come back in hack with us. He came at night in street car.
    Cross-examined: Susie ran over the hay on the other side. Defendant came to the door, buttoning up his pants. He was on her. I don’t know what time it was. Ho, Susie ran and caught up with defendant. She went off with defendant toward the big road. Went fishing in the afternoon. Susie put her legs over his and he called Charity to call her away. He went down the creek and she followed defendant. I told ma defendant went hunting with Susie, and about being in the barn together. Ma kept me home and I did not go out to Medaris’ to chop cotton. When defendant came back in wagon from Medaris’ ma would not let him come in the house, and gave him his clothes and he went off. I am eight years old. I live with my mother and Charity Box. They are friendly with defendant, and they have furnished defendant his meals since he has been in jail, several months.
    Charity Box, sworn, says: I knew defendant, Ben Rhem, down at La Grange, Texas, where we all lived. We moved to Austin and then Ben moved to Austin and boarded at our house. Ben I have known for about a year before the raping of my sister by Ben. Susie Atkins, Sadie Atkins, Jim Hall, Ben, and myself all went down to Peter Smith’s ranch to chop cotton on Wednesday. It rained so we could not chop cotton on Thursday and Friday. At noon time I sent Susie down to the barn to get some firewood, and Ben went to hunt some eggs. They staid so long I sent Sadie Atkins to call them to the house. I was not well. Sadie went down and they afterward came up to the house. On Friday Ben and Sadie went out hunting, and when they came back he was waiting for dinner, and then he went out hunting and Susie asked to go, and she ran out and caught up with him and went hunting and crossed over to the public road. They came back before dinner and she looked all right. She was not crying, or clothes, as far as I noticed anything, out of order. Then she looked out and Susie went out arid sat down by Ben. She eat dinner and Ben didn’t eat dinner. Ben, Susie, Sadie, Jim Hall, and myself came in on Wednesday, and on the 19th we all went up to Wheeler’s Grove. Sadie and I, ma, Laura Sheppard, Susie, Jim Hall, and Ben went up in a hack. Susie sat in Ben’s lap part of the way. We then, next day, went out to Medaris’ to chop cotton—Ben, myself, Susie Atkins, and Jim Hall. We came back from Medaris’. Mamma met Ben at the gate and she gave him his clothes and would not let him come in. Mamma met Ben again and got after him about it. This was on Congress Avenue, in Austin, and momma, Susie, Ben, and myself all went into the saloon and Ben treated us all. I never took her in my hands and shook her and told her if she did not swear to it that Ben didn’t rape her I would kill her. . I never threatened her at all. I washed the clothes Susie wore out at Peter Smith’s through first water and Susie through the second. Ho blood spots of any kind on them.
    Cross-examined: Ho, sir. Ma first met defendant at the gate, and would not let him come in, and gave him his clothes and told him to go. We afterward met Ben upon Congress Avenue, near depot, and we called him over on the side of street we were on and ma got after him again. I never promised Ben’s father that I would swear for him, and that if Ben came out of jail free he was to pay me money, or a hog. I’ll tell yon how it was: Ben’s father said to me if I washed his clothes and carried him something to eat he would pay me for doing so, and he paid me $6. I told him I would rather have the money in place of the hog, so I got the money, as I said before. Ho, I didn’t promise to swear for him for the hog, or the money either, but I promised to wash his clothes while he was in jail and to carry him his meals, all of which I did. I never saw nothing on her clothes. She got fresh clothes on when we came in for the 19th celebration, and when we come back from Medaris’ I washed all the clothes through first water and Susie through the second water. There were no stains of any kind on her clothes—none of them. [She was asked: “Have you not lived in adultery for six months with Ben Bhem before he was arrested and put in jail? ” The court instructed witness that if an answer would criminate her she need not answer unless she wished to do so. She then declined to answer the question.] It is true that I have carried the defendant his meals to jail once or twice daily for the past six months— that is, ever since his arrest. The injured party, Susie Atkins, is my sister. I am a married woman. My husband has not been living with me for the past two years. Ben Bhem has been living in our family for over a year. We all slept in the same room of the house while out at Smith’s place. The little girl, my sister Susie Atkins, can write. She wrote the two letters shown me, addressed to Ben Bhem, and signed by her, admitting that this charge was false, and gave them to me to give to Ben Bhem, and I took them to the jail and gave them to defendant and he gave them to his lawyers, and at the last trial of this case the defendant read these letters in evidence to the jury.
    Jim Hall sworn: I knew Susie Atkins, Sadie Atkins, Charity Box, and Mrs. Laura Sheppard and defendant down in La Grange. They left La Grange and come to Austin to live. I came up, too. Ben Bhem is my uncle. I went down to Peter Smith’s to chop cotton with them— Ben Bhem, Susie Atkins, Sadie Atkins, and Charity Box. On Wednesday and Thursday we could not chop cotton—ground too wet. Susie and Ben went down to get some wood and eggs, and I went down, too. I saw Ben on her, too, when Sadie saw him. She got up and run over the hay to other side barn. Ben came to door buttoning up his pants. We all went fishing in the afternoon, Ben was sitting on the bank of the creek fishing, and Susie sat down by him and threw her legs over his. Then he called to Charity Box to make her quit and let him alone, and Ben got up and went down farther, and she followed him and he got up and went to the house. Hext day Susie went hunting with Ben after he had been out with Sadie hunting. When Susie came back from hunting she said nothing. We came to town on Wednesday. Ben, Susie and Sadie Atkins, Charity Box, and myself all came together. We went next day, Thursday, the 19th day of June celebration, to Wheeler Grove. Ben, Laura Sheppard, Susie Atkins, Sadie Atkins, Charity Box, and Clara all went up in a hack. Susie sat in Ben’s lap when we were going out to the grounds. Ben treated us all out there. He never came back in the hack. He came back after dark in a car. We went out to Medaris’ to chop cotton—Ben, Susie, Charity Box, and myself—and we all slept in the same room, and while there Charity Box and I went off one night and left Ben and Susie there alone, and I took Charity off to leave Ben and Susie together to do it, and I stood out and watched for my uncle while he was having connection with this little girl. I also watched for Ben and Susie at Caroline Mason’s, on First Street, at her grandmother’s, while they did it down there. I am a nephew of Ben Bhem, the defendant.
    Cross-examination: Yes, sir; he had her whenever he wanted it. Yes, I went down home to La Grange and came hack. Ben boarded •at Mrs. Laura Sheppard’s, Susie Atkins’ mother, all the time he was up here, except when he was out chopping cotton with Susie and Sadie Atkins and Charity Box and myself, when I was up here. Yes, sir; I know that she does it, and Ben and her have it whenever he wants it. I am thirteen years old.
    Laura Sheppard sworn: Defendant, Susie, Sadie, Jim Hall, and Charity Box went out to chop cotton at Peter Smith’s, and they came back in about a week and went to the 19th of June celebration, and they then went out to Medaris’ farm to chop cotton. Susie, defendant, Charity Box, and Jim Hall went out there. I kept Sadie at home, and she told me about defendant and Susie going out hunting and being in the barn. I got after her when she came in from Medaris’ farm. Susie said: “He didn’t do nothing; ” then she said, “Ma, he forced me.” I said: “You say he forced you; did he hurt you ? ” “ Ho, he did not hurt me.” .1 said: “Oh, you know he did not force you if he did not hurt you.” If Susie had come home and told me that Ben Bhem had raped her, I tell you that Ben would have hit the road. I would have killed, him myself if the law had not done something. I said to Ben Bhem, “You did me dirt.” He said: “Ho, I didn’t.” He said:.“Did Susie say I raped her ? Then you can kill me; do anything with me.” This was about eleven or more days after Susie said she was forced down at Peter Smith’s, when we first met Ben Bhem down on Congress Avenue, near depot. After we had the talk about the rape, Ben took me, .Susie, and Charity Box into the saloon near by, and we all drank up a dollar’s worth of beer, which Ben paid for.
    Cross-examined: At first she said, “He did nothing.” I said, “Did he force you?” and she said, “Yes, he forced me.” I said, “Did he hurt you?” She said, “Ho, he didn’t hurt me.” I said, “Oh, you know he did not force you; you fool child, you say he did not hurt you. Well, he did not force you, then.” Yes, I trusted Ben Bhem and treated him like one of the children. I let the girls go out there to Medaris’ because Ben was going out there, and I trusted Ben with my ■ girls anywhere. When he came in the wagon I said, “Here are your clothes; you can’t come in the house. I never would believe, Ben, you would rape my child.” Then I went out after that and met him as stated above, where he afterward took us into a saloon and treated us. ■ Ho, sir;. I never tried to make her swear that defendant never raped, my child. I came here to swear to only the truth. Yes, sir; if it is' :against my own child I swear to the truth. Let it come, help or hurt' who it may. I never made her swear out the complaint. Her half-brother Alfred made her go; that is, he tried to get her to go, and she. would not. Then he got a paper from the court and took her up there: —to the court on Pecan Street. Bo, sir; I never beat her about what, she did with Ben Rhem. Bo, sir; I am no more in favor of Ben Rhem than I am of Susie. I simply swear to the truth, that’s all. She never did tell me about it till Sadie told me about her going hunting and being in the barn, and not until I got after her myself about it, and she-at first denied anything being done. When I told her what Sadie said, then she said, “He forced me; he forced me.” Bo, sir; I don’t take-up for Ben Rhem, who ruined my child, nor do .1 go back on my child. That’s all I know about it. Yes, sir; that’s all. “ Did you not employ lawyers to defend Ben Rhem?” Bo; I did not employ anyone, but. I went up to the court house with Susie Atkins, my little girl, to see Mr. Allen to employ him to get Ben Rhem out of jail, where he was. held on this charge. I wanted to get him out of jail, although he was-charged with raping my child.
    G. W. Allen sworn: I am a lawyer, practicing here in Austin, Texas. Laura Sheppard, the mother of Susie Atkins, came to me with, another woman the first time to employ me to defend Ben Rhem, and I told them to come back in the evening and bring Susie Atkins with them, as I wanted to talk tó the girl by herself, and I told the two-women if the girl said she consented to him having connection with him, why, that settled it, and I could get him released on writ of habeascorpus. In the afternoon of the same day they came back, and I took the girl Susie Atkins into my office, and a negro boy came in with her, and I asked her if Ben Rhem had intercourse with her by her consent, and she answered that he did. I then said that was all right; I could get Rhem out. They were to employ me as Ben" Rhem’s attorney to-defend him.
    Cross-examined: I am most positive that it was Susie Atkins who-came to my office and made said statement. Yes, I could be mistaken, but as I said before, I am sure it was her that came into my office I talked to her to be sure and to know what she was saying, and she-said that “Ben Rhem had intercourse with her by her consent,” and I then told the women afterward that was all right, that I could get. Ben Rhem out on that, and we then had a talk about my fee, and they went out and said they would get it, but they never came in afterward or spoke to me about it since.
    ■ Ben Rhem, defendant, sworn: I first met and became acquainted with Susie Atkins, Sadie Atkins, Charity Box, and Laura Sheppard, the mother of the girls, down at La Grange, where we all lived. Mrs.. Sheppard, her mother, moved up to Austin after I got acquainted with the family. I have known them about one year before I was arrested, while they-lived down at La Grange. I was well acquainted—was like-one of the family; was at home at their house" after they came to Austin. I soon came up here myself and I boarded at their home, and I was. like one of the family. They lived down on First Street, in the house and with her mother (Laura Sheppard), Caroline Mason. My nephew, Jim Hall, came up to Austin, and he too boarded at Mrs. Sheppard’s. We—that is, Susie Atkins, Sadie Atkins, Charity Box, Jim Hall, and myself—all went down to Peter Smith’s to chop cotton. We got down there on Wednesday, about noon time. It was too wet to chop cotton on Thursday. We chopped a few weeds around the yard. Before dinner on Thursday Susie was sent out to the barn by Charity Box, her sister, to get some wood to get dinner with, and I went out to the barn to get some eggs, and while Susie and I were out there I had intercourse with her, and Sadie came out and called Susie while we were in the act of intercourse, and we did not answer her, and she came into the barn and came up and saw us. I was on top of Susie and jumped up and went to the door buttoning my pants, and Susie ran over the hay on the other side of the barn. Jim Hall was out there and saw us, too, when we were up in the barn. We all went to the house, and after dinner we went down to the creek a fishing—that is, Susie Atkins, Sadie Atkins, Charity Box, and Jim Hall and myself—and while I was there fishing she came down and sat near me and threw her legs over mine and said she had something in her foot, and she just sat there, and I called her sister, Charity Box, to call her away. I could not fish with her that way. I got up and went down the creek and Susie followed me and came to me again, so I got up and left and went up to the house again. It was too wet again Friday to chop cotton, so I got Mr. Smith’s gun and went hunting in the morning, first with Sadie Atkins. We came back some time before dinner, and I then got a gun and went out again, and Susie Atkins asked Charity if she could not go, and Susie then run and caught up with me, and we went out into the big public road and started over into a big pasture to hunt birds, and Susie said, “Let’s go over here in this pasture; that may not be Mr. Smith’s pasture.” So Susie and I got over into the pasture she said to go in. After I got over there awhile I took sick and was throwing up and I went down to the creek and was washing myself, and Susie said I must be breeding. She had the gun, and she says come on, and we went on a little further up in the mesquite bushes from big road and she set the gun down and says: “ Come on; you know what you said at the barn.” “What about the barn? ” “ Oh you know what you said yesterday at the barn.” Then I went up to where she was, and I had intercourse with her and with her consent. After that we came on back to the house and the dinner was not ready, but I was too sick to eat anything. I didn’t eat dinner. I sat down on the porch and Susie got a chair and sat down alongside of me. She got up and ate her dinner. I did not. We all slept in the same room—that is, Susie, Sadie, Charity Box, Jim Hall, and myself. We slept on one side of the room and the girls on the other, on pallets spread on the floor. We came in on the following Wednesday, and on next day—19th of June—went out to Wheeler’s Grove to the 19th celebration. We rode out in a hack. Clara and Susie sat in my lap part of the time on the way out. I never came back on the hack. I came back on the street car. Next day Susie Atkins, Charity Box, Jim Hall and myself went out across the river to Medaris’ to chop cotton. I had intercourse with her then, and Jim Hall watched for us while we were at it. I had intercourse twice with her in April, about two months before she claims I assaulted her. She has always been kind to me. I never threatened her before nor after the assault. I thought I got what I wanted. I thought I was having intercourse with her each time. I was satisfied by what was done, any way, and she seemed to be satisfied. When we came back from Medaris’ Mrs. Sheppard, Susie’s mother, met me at the gate and would not let me come in the gate— said she was done with me. I took my clothes and did not go in the house or yard. I afterward met Mrs. Sheppard, Susie Atkins, and Charity Box on Congress Avenue, near the depot, in Austin, and they called me over to them, and I went over, and Mrs. Sheppard says: “Ben, you did me dirt.” “What did I do to you, Mrs. Sheppard?” “You took Susie out hunting with you and you didn’t do right; you had her out to the barn, also.” I said, “Did Susie say I raped her? Then you can kill me, do anything with me.” After we talked a little while longer I, Susie, Charity Box, and Mrs. Sheppard went into the saloon near by, and I treated them all to a dollar’s worth of beer, and we all went out friendly. Then the complaint was made and I was afterward arrested and had an examining trial.
    Cross-examined: I am twenty-one years old and well developed in, ■ my private naris.. I never wrote any letters and gave them to Charity Box to bring them into jail. Mr. Brown saw the first letter I got from Susie Atkins, and he gave it to me. He read it first. Charity Box brought the second letter from her sister to me. The letters were signed • Susie Atkins. Yes, I wrote my name down on that paper for a new trial and swore to it on my first trial. That is my genuine signature. I never forged those letters. I did not. Mr. Brown, the jailer, gave me the first letter, and the second one, too, as I said before, Charity Box having given them to him. I never wrote no letter and sent it out and had it sent back, as if written by Susie Atkins She wrote the letters and sent them to me. I never did it. I know her writing, and these letters are written by her. Ho, the “ B ” in the letter is not like the “B” I wrote on the paper for new trial in the other case. Ho, sir; I never forced her; she consented to all that was done. I never-threatened her. We, Susie and Sadie Atkins, Charity Box, Jim Hall, and myself, all slept in the same room at Peter Smith’s and at Medaris’ too—except at Medaris’, Sadie Atkins was not out there. I did treat them to a dollar’s worth of beer. I was not keeping the whole family. I did not keep any of them. I was boarding there while here in Austin. I had intercourse with Susie Atkins from April up to July, 1890, whenever I wanted it. I had no trouble in penetrating her sexual organ with my penis. I think the intercourse at each time was complete. I had it with her many times. I did have intercourse with her on the 13th day of June, 1890, at Peter Smith’s place, as claimed by her, but it was with her consent. Charity Box, the sister of Susie Atkins, has been bringing me my .meals once or twice daily ever since I have been in jail, for more than six months, and her mother has been friendly to my defense.
    Here the defendant closed.
    Ed. Huppertz, being sworn for the State, qualified himself as an expert as to handwriting, and being shown the two letters which the defense claimed were written by Susie Atkins, and which were signed by her and addressed to “ Mr. Ben,” also the genuine and admitted signature of Ben Bhem to his motion for a new trial, made at the last term of this court, stated that in his opinion, as an expert, the signature of Ben Bhem and the said two letters were the same handwriting, and written by the same person; and being shown a genuine specimen of Susie Atkins’ handwriting, he said that it was plain that it was not the same handwriting as that of the two letters.
    The State, having proved that these two letters were introduced in evidence by defendant at the last trial of this cause, then offered in evidence the said two letters, which, together with Ben Bhem’s genuine signature and a genuine specimen of Susie Atkins’ handwriting, were introduced in evidence. The two letters are as follows:
    [Exhibit “A.”]
    “ Mr. Ben dear sir I have taken the pleasure this evening to tell you my present mind I am sorry to say that I was made to swear a lye against you for some thing that you did not do. I was bound to tell that lye to please pints and grandma and brother Alf you know they did hate you and they told me if I didnt say that you taken it away from me that I shouldent stay at home. God knows that you are inocent of this as god is him self me and Sadie was talking a bout this the cause of you first noticing me I will acknowledge that I put myself on you and if you had justice you never would have been in there.
    (Written on back): “please dont let mama see it but you.
    (Also): "Sussie Atkins. ’ ’
    [Exhibit “B.”]
    “Austin, Texas, November 15, 1890.
    “ Mr. Ben dear sir I have taken the pleasure to write you a few lines I am now going down to la grange to see pints I heard that she was dead and if she is I reckon the lord is punishing her for making me swear that lye against you Mr. Ben you know and jimmy knows this is a made up thing on you to day if you was out you would be just the same with me as you was before you should not think hard of me you know I was made to tell this lie oh you now suppose that jimmy was to tell all that he knows about it he would ruin Brother Alf and grandma and pints for ever you know that I thought to much of you to swear a lie on you if I could have hope myself and after I swore that lie I wanted to take • it back but I was afraid but they will find out in the future that it is a lie and I was made to tell it it seems that my own people is against me because they know that I have told a lie I would come to see you but I am afraid. Pints tried to get me to swear that I want but twelve years old when momma told you last year that I was fourteen and she did.make me swear that I want but thirteen she said that would make it go harder with you and she made me wear my dress short to make me look smaller than I am you notice me when your trial comes how short my dress will be this is the second time that I have written to you and you have not answered neither one of my notes yet I could tell you a heap more but you will soon be out I hope so what I have shall remain as yours Mr. Ben please dont let no one see this and pints made me say that you had never fooled with me but once but me and you neither one could not tell how many times you have fooled with me I remember well what I told jimmy the night that him and teaty went after supper for us when we was choping cotton that night shall be long remembered this is to show you what I was made to do will you promise me that you will do as you have done when you get out and if you will let me know in your answer if you will I will take back everything I have said and tell the truth about it and if you dont I will not take nothing back let me know, right away so that I will know what .to do I love to enjoy myself with you again please dont let no one see this when you read it tear it up I have had bad health ever since I told that lie your truely friend.”
    
      Wood & Granberry, for appellant.
    
      R. H. Harrison, Assistant Attorney-General, for the State.
   DAVIDSON, Judge.

This is an appeal from a conviction for rape. The appellant was given a term of five years in the penitentiary, and from this sentence he appeals to this court. It is unnecessary to notice any of the alleged errors urged against the conviction, because they are not well taken, except the assignment of error that calls in question the sufficiency of the evidence to support the verdict of the jury.

We will not undertake to review the facts. After a careful inspection and examination of the statement of facts we are not willing that this conviction should stand. We do not think the evidence for the State makes out such a case for the crime of rape as authorizes the conviction. The testimony and conduct of the prosecutrix herself fails to show the commission of the offense with that certainty and satisfaction that justifies an affirmance of this case, or sustains the verdict of the jury.

For want of sufficient evidence to support the conviction, the judgment is reversed- and cause remanded.

Reversed and remanded.

Judges all present and concurring.  