Opinion
No. 24139.
November 3, 1948.
1. — Evidence — Controverted — Jury's Decision Binding.
Where evidence sufficient to sustain conviction is controverted, the jury's decision is binding.
2. — Evidence — Rape — Sufficient.
Where appellant testified and admitted the act of sexual intercourse, but claimed it was with the consent of prosecutrix, which prosecutrix denied, the evidence was sufficient to sustain conviction.
3. — New Trial — Not Verified — Deficient.
A motion for a new trial which is not verified by any one is wholly deficient.
Rape. Appeal from District Court of El Paso County; penalty, confinement in the penitentiary for thirteen years.
Hon. Ballard Coldwell, Judge Presiding.
Affirmed.
A. L. Carlton and Manning, Berlinger Gaither, all of El Paso, for appellant. Roy D. Jackson, District Attorney, of El Paso, and Ernest S. Goens, State's Attorney, of Austin, for the State.
The offense is rape. The punishment assessed is confinement in the state penitentiary for a term of 13 years.
Appellant's chief contention is that the evidence is insufficient to justify and sustain his conviction.
The record shows that the state made a complete case against him by the testimony of the prosecutrix, the injured party. Appellant, who testified in his own behalf, admitted the act of sexual intercourse, but contended that it was with her consent. He also produced some witnesses who lived in Juarez, Mexico, who testified that they saw prosecutrix and appellant in Juarez at the time in question; that she was arrested over there for disturbing the peace. This raised an issue of fact which the jury, who are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, decided adversely to him.
In his motion for a new trial, appellant charges misconduct by the jury while deliberating on their verdict. The motion, as it appears in the record, is not verified by anyone, therefore, the same is wholly deficient. See Bryant v. State, 69 Tex. Crim. 457; Dodson v. State, 92 Tex.Crim. R.; and Hicks v. State, 171 S.W. 755.
No reversible error appearing in the record, the judgment of the trial court is affirmed.
Opinion approved by the Court.