#### GOODWELL v. STATE.

No. 14887.

Court of Criminal Appeals of Texas.

May 11, 1932.

Holland & Cousins, of Beaumont, and B. F. Creel, of Kountze, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.

MORROW, P. J.

Tbe offense is rape by force; penalty assessed at death.

Tbe following is, in substance, tbe testimony of tbe prosecutrix, Annie Pécora. On tbe 25th of February, 1931, while she was sick in bed, tbe appellant entered her room, and by force and over her protest and resistance, bad a complete act of intercourse with her. On tbe same day, about three o’clock in tbe afternoon, under like circumstances, be repeated tbe assault with tbe same result. The appellant was a negro and bad been employed as a laborer upon tbe farm of tbe father of tbe prosecutrix: Her father was a dairy man and bad a number of cows, sixty-five of which were giving milk. At tbe time of the occurrence, about 8 or 9 o’clock in tbe morning, tbe sister and stepmother of the prosecutrix were on tbe premises, either milking or preparing to milk tbe cows. They were at *the*barn some 300 feet from *the*bouse.

Tbe father of tbe prosecutrix testified that, oh the morning of the 25th of February, he went to Beaumont with a load of milk and returned apparently on the same evening. He ■heard nothing of the assault from tbe prosecu-trix or from any other source, and knew nothing of tbe assault until after the appellant’s arrest. According to tbe witness, the appellant was present on the premises in tbe morning at tbe time the witness started to Beaumont.

Tbe prosecutrix testified that she made some outcry, but that the appellant placed his band over her mouth to obstruct the sound. Neither the stepmother nor the sister of tbe prosecutrix was used as a witness by the state. Where they were at the time of the second alleged assault is not disclosed by tbe prosecutrix or by any testimony in the ease. No report of either assault was made by the prosecutrix until about two months after tbo date of the alleged offense, namely, on the 2nd day of May, 1931, when she reluctantly yielded to the importunities of her stepmother and revealed the assault. The stepmother’s interest in the matter was occasioned by tbe fact that she had become aware that tbe menses of tbe prosecutrix bad ceased. The prosecu-trix said that her reluctance to report the assault and her failure to disclose it was due to tbe fact that appellant had stated that, if she disclosed it, he would harm her and also harm her family; and she knew that be carried a pistol. The prosecutrix was with a child at tbe time she disclosed her condition to her stepmother.

The appellant testified in his own behalf and denied bis guilt. He denied any assault upon tbe prosecutrix and claimed that at tbe time of the alleged assault be was not engaged in woi’king' for the father of tbe prosecutrix but was at the home of bis mother in town some distance from where the Pécora family lived. In that claim tbe appellant was supported by the testimony of bis mother, as well as bis wife. Tbe appellant also claimed in his testimony that, due to an attack of mumps, be bad lost all' desire for sexual contact; that he only engaged in it on rare occasions, as be bad no desire for it. He claimed that be bad been married twelve years and bis wife had never given birth to a child by him. She bad borne a child before her marriage to tbe appellant: The appellant’s wife corroborated him with reference to bis lack of desire for sexual intercourse. Tbe brother of the appellant also supported bis theory of alibi.

Mr. Branch, in his Ann. Tex. P. C., page 1002, § 1784, deduces, from a number of tbe decisions of this court collated by him, tbe following:

“A conviction will not be sustained on the uncorroborated testimony of a woman who waits too long befoi’e she anounces her decision that she has been raped, especially if she has met persons who would have given her protection, or where she went with defendant after tbe supposed rape, or where her pregnancy or her being detected in tbe act was a motive for her statement.”

“A conviction will not be sustained on the uncorroborated testimony of a woman who failed to make prompt outcry, and where if her testimony was true it was susceptible of corroboration, or where facts stated by her which were capable of corroboration were disproved.”

Among tbe cases cited are Lawson v. State, 17 Tex. App. 304; Cowles v. State, 51 Tex. Cr. R. 498, 102 S. W. 1128; Rhea v. State, 30 Tex. App. 485, 17 S. W. 931. Among tbe later decisions of this court supporting tbe text are Terry v. State, 98 Tex. Cr. R. 540, 266 *809S. W. 511; Davis v. State, 100 Tex. Cr. R. 617, 272 S. W. 480; Breiger v. State, 99 Tex. Cr. R. 292, 269 S. W. 100; White v. State, 99 Tex. Cr. R. 339, 269 S. W. 792, 793.

Touching the importance of the delay in reporting the outrage or the failure to disclose it, the following quotation is taken from the case of White v. State, supra: “The testimony showing opportunity for the disclosure of the outrage and the long concealment of it, even extending to the time that the pregnancy of the prosecutrix rendered it impossible to longer prevent its discovery, rendered the explanation of the delay import-tant to the state. See Ruling Case Law, vol. 22, p. 1187, § 19; also page 1181, section 12; Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 Ann. Cas. 258; Underhill on Crim. Ev., 3d Ed., p. 887, § 614; Terry v. State, 98 Tex. Cr. R. 540, 266 S. W. 511; Breiger v. State, 99 Tex. Cr. R. 292, 269 S. W. 100.”.

The suggestion of danger to herself or her family due to the claim of threats of the appellant is very much minimized by the state of the record from which it is understood that, during the long delay intervening between the alleged assault and its disclosure, the appellant was not on the premises or near them. As understood, it is not claimed by the prose-cutrix that after the outrage the appellant remained upon the premises or was in a position to carry into effect the threats which she claims he made.

Among the grounds for a new trial, the appellant relies upon article 753, subd. 6, in which it is said: “Where new testimony material to the defendant has been discovered since the trial. A motion for a new trial on this ground shall be governed by the rules which regulate civil suits.”

The motion is supported by several affidavits, and in form complies with the statutory demand, though the averments of diligence do not come up to the full measure of the practice in this court. In instances where the death penalty is assessed, this court while obliged to obey the rules laid down by statute, has felt itself constrained to relax the judge-made rules concerning the application of the statute. In the present instance, the new evidence is deemed of some importance. In view of the manifest weakness of the state’s proof, it might well have impelled the trial court to have granted a new trial. Among other things was a purported letter claimed to have been written by the prosecutrix to the appellant after the date of the alleged offense. Several persons made affidavit that they resided near the family of which the prosecutrix was a member; that at times the appellant, who was called “Frenchy,” and another negro, called “Senegar,” were employed; that in their associations with members of the family, including the prosecutrix, there was no discrimination between white and colored persons. The prosecutrix and her family were of foreign descent. According to the affidavits, they treated negroes as members of the family. The prosecutrix had told one of the witnesses that she loved “Frenchy.” In one of the affidavits is the statement that the intimacy of the family in their relations with negroes was so offensive and repulsive as to cause the family to be shunned by their white neighbors. The affidavits contain statements that the members of the family, including the prosecutrix and her sister, were frequent visitors at the home, of “Frenchy” (appellant) and his wife.

Upon the record before us, especially upon the failure of the prosecutrix to avail herself of the opportunity to make outcry or to disclose the assault, and the failure of the state to give adequate explanation of her silence, it is thought that the evidence is not sufficient to support the verdict.

The judgment is reversed, and the cause remanded.