Opinion
No. 23399.
Delivered April 24, 1946.
Bail — Evidence.
Evidence in support of charge of rape was insufficient to warrant a denial of bail but warranted granting bail in the sum of $5,000.00.
Appeal from Criminal District Court of Bexar County. Hon. W. W. McCrory, Judge.
Habeas corpus proceeding by relator to secure bail. From an order remanding relator without bond, relator appeals.
Reversed, and bail granted.
The opinion states the case.
Herman G. Nami, of San Antonio, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Relator was under indictment charged with rape upon Emilia Sanchez. Upon habeas corpus proceedings to secure bail he was remanded without bond from which order he appeals.
We refrain from setting out the evidence in detail. As the record reaches us the evidence is far from satisfactory. Upon the habeas corpus hearing Emilia Sanchez was not called as a witness but her testimony taken upon an examining trial was used. It was to the effect that she was forcibly put into an automobile about twelve o'clock at night in San Antonio and driven into the country and there raped by relator and six other of his companions. On cross examination in the examining trial testimony she asserted that she fainted soon after being placed in the car and did not regain consciousness until about four o'clock in the morning, at which time she was in a field with one of the men, who was not relator. Although unconscious, she asserted that all seven men had intercourse with her without her consent. Upon the habeas corpus hearing there was introduced in evidence — apparently without objection — the confession of three of relator's companions, in which they admit having intercourse with the woman more than once, and say in their confessions that relator also had intercourse with Emilia. By referring to these confessions it is not to be understood that we are intimating they would have been admissible against relator over objection. Even in these confessions there is no direct admission or statement that these various acts of intercourse were without the woman's consent. The nearest approach to it appears in the confession of one Guadalupe Bravo in which he says that while relator was having intercourse with the woman Estolio Garcia or another of the men pulled relator off the woman who appeared to be asleep, and that the one who pulled relator off slapped her on the face trying to wake her up.
One of the men, George Gandra — according to his confession — remained in the field with Emilia after the others left and had another act of intercourse with her. About daylight he and Emilia walked back to the city together.
While the facts reveal a state of depravity which is staggering and revolting to the degree of nausea they do not warrant a denial of bail under the provisions of our statute.
The judgment remanding relator without bail is reversed and bail is here granted in the sum of $5,000.00.