Davis v. State (15 S.W.2d 623, 1929)

CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for seven years.

Appellant and prosecutrix are negroes. Prosecutrix was under the age of 16 years at the time of the alleged offense. Prosecu-trix testified that, as she was going to her music lesson at about 7 o’clock in the morning, she met appellant, and that he asked her to go with him to a wash shed near by. She said that she went with appellant, and that while in the wash shed with him he had sexual intercourse with her. The mother of pros-ecutrix testified that she saw prosecutrix and appellant go into the wash shed when prosecu-trix was returning from her music lesson. Several weeks after the date of the alleged rape, a physician examined the private parts of prosecutrix and found that she had been penetrated either in an act of sexual intercourse or by other means. The state offered testimony tending to show that appellant had sent a present to prosecutrix, and that he had on other occasions associated with her. Prose-cutrix testified that appellant gave her some medicine to prevent pregnancy. Appellant denied that he ever at any time had sexual intercourse with prosecutrix, and declared that he and the family of prosecutrix had become estranged over a debt they owed him. Without further detailing the facts, it is observed that the issue of guilty was closely contested.

In his argument to the jury, the district attorney stated, in substance, that appellant had burglarized a house at night. Proper objection was made to this argument. The court, in substance, overruled the objection, by stating, “Proceed with the argument.” The argument was unsupported by the record and unwarranted. It was in effect the unsworn statement of the district attorney that appellant was a burglar as well as a rapist. The issue of guilt was closely contested. More than the minimum penalty was assessed. The jury were not instructed to disregard the argument. In the state of the record, it cannot be said that such obviously improper remarks did not operate to the prejudice of appellant. Thomas v. State, 109 Tex. Cr. R. 578, 6 S.W.(2d) 118.

For the error discussed, the judgment is reversed, and the cause remanded.

PER OURIAM. 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.