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: 231
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1875.] DAVIS v. THE STATE,, 231
Opinion of the Court.
reference to the symptoms described by the mother, except in
the particular previously referred to, The time and circumstances
under which the mother made her examination are not
shown. The neighbor, to whose house she was taken immediately
after the alleged act, was not examined. It does not
appear whether the child's under-clothing was inspected, and
many other matters tending to aid in a correct conclusion, do
not appear to have been adverted to, so far as we can see from
the statement of facts.
It is said by Wharton, in his work on criminal law, after
commenting on several English cases, discussing the necessity
of proof of penetration: " The practice seems to be, to judge
" from the cases just cited, not to permit a conviction in these
" cases, in which it is alleged violence has been done, without
" medical proof of the fact whenever such proof was attainable.
"' It seems but right, both in order to rectify mistakes and to
" supply the information necessary to convict, that the prosecu"
trix should be advised at the outset, so that she can take the
" necessary steps to secure such an examination in due time.
" If this principle be generally insisted upon, there is no dan"ger
of any conviction failing because of non-compliance with
it, and, on the other hand, many mistaken prosecutions will
" be stopped at the outset." (Sec. 1138.)
While we cannot say that the necessity of a medical examination
has been regarded as absolutely indispensable to a conviction
in all cases by the American courts, or that we are
prepared to yield our assent to so broad and unqualified a
proposition as seems to be approved by this able commentator,
yet, we think, the great and essential importance of this character
of evidence cannot be denied, and especially in cases
like this, where the party alleged to be injured is incapable of
testifying, and the proof of penetration can be established
by circumstantial testimony only, and that by no means of an
absolute or conclusive character, it can hardly be overestimated.
These considerations lead us to the conclusion-without, how
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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/m1/239/: accessed August 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .