Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 230
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230 DAVIS V. THE STATE. [Term of
Opinion of the Court.
directing the attention of the jury to the real issue in the case
as it might and should have been.
The only question upon which the testimony left any room
for dispute or ground upon which to rest an opinion was,
whether the alleged offense had been completed by penetration.
While the slightest penetration is sufficient, still there must be
satisfactory proof of some to consummate the offense. It must
be shown, says Tindal, C. J., that the private parts of the male
entered, at least, to some extent, those of the female. Unless
this is the case, the accused may be guilty of an attempt to
commit the crime of rape, but not of its actual commission.
The proof upon this point, consisted of the evidence stating
the position in which appellant and the girl, alleged to have
been ravished, were found by her mother, the red and swollen
condition of her private parts, and the witness's statement that
she was convinced and fully satisfied from what she saw take
place at the time, and also from her examination of the person
of her daughter, that there had been penetration. On tile
other hand, she testified that there was no laceration or blood
that she could discover, resulting from such penetration, and a
surgeon, who was examined as a witness, stated, after having
made a private examination of appellant, that though there
were exceptions to the rule, a man of his dimensions could not
evidently, or probably, penetrate a female of the age and size
of the girl alleged to have been injured, without laceration.
He also stated, however, if she could be so penetrated, the condition
of her parts, as described by her mother, would be a
natural consequence of the act.
This reference to the testimony shows (as, we regret to say,
we find of much too frequent occurrence in cases of the greatest
importance) a want of that full and thorough development
and exploration of all the facts and circumstances connected
with and bearing on the case, of which it would seem to be reasonably
susceptible, and such as its vital importance evidently
demands. No medical examination of the child was made, nor
was the physician, who testified in the case, interrogated in
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/238/: accessed July 27, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .