
    MARCH 13, 1935
    Albert Carr v. The State.
    No. 17332.
    Delivered March 13, 1935.
    The opinion states the case.
    
      Alvin R. Dawson and Frank E. Mann, both of Houston, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, death.

Mrs. Ethel Wittliff, the injured party, testified, in substance, as follows: On the night of August 25, 1934, her husband was at work away from home. She and her baby had gone to bed on a screened sleeping porch. She was awakened by someone touching her. She was lying on her back and her gown was up to her waist. Appellant, who is a negro, was over her. She made an effort to get up but appellant cursed her and threatened to kill her. Cutting her on the side with some sharp instruments, he pushed her back on the bed and raped her. At this juncture her husband entered the sleeping porch and engaged in a fight with appellant. Appellant ran from the house, pursued by her husband. She was positive appellant was her assailant.

Edwin Wittliff, the husband of the injured party, gave substantially the same testimony as the foregoing. When he jumped on appellant, appellant cut his shirt. He pursued appellant as he left the house but was unable to apprehend him. He positively identified him as his wife’s assailant. In a short while after the assault, appellant was arrested while lying under the edge of a house two blocks removed from the scene of the assault. The arresting officer testified, in part, as follows:

“At that time he was sweating like he had been running, looked like that he just played out, and his clothes were all disarranged and his pants were unbuttoned. His pants were unbuttoned in front. They were buttoned at the top just enough to hold them up.”

Appellant did not testify in his own behalf, but introduced one witness in an effort to show that he was not at the scene of the assult.

No bills of exception are brought forward.

The judgment is affirmed.

Affirmed.

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.  