
    Ex parte HATHORN.
    No. 23273.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1945.
    C. D. Bourne, Jr., of Dumas, for appellant.
    Ernest S. Goens, State’s Atty., 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 arre'sted, 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 led 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 hiis 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 iis ordered discharged upon execution bond in the amount of Five Thousand Dollars.  