WARREN v. THE STATE

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Docket Number

No. 1178.

Judges

HURT, PRESIDING JUDGE.

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DR. R. B. WARREN v. THE STATE.

Duncan Jones, for appellant. — The assigned errors, from 2 to 12 inclusive, will be considered together, and are as follows:

2. The court erred in charging the jury that the consent or want of consent of the prosecutrix should not be considered by them in determining the question of attempt to rape, if the prosecutrix was under 15 years of age at the time of the attempt.

3. The court erred in charging the jury that neither force, threats, nor fraud need be shown to establish the charge of attempt to rape, if the prosecutrix was under 15 years of age at the time of such attempt.

4. The court erred in its charge to the jury in failing to define the crime of attempt to commit rape, either in the terms of the statute or as used in ordinary language, and in authorizing the jury by the charge to find the defendant guilty of attempt to rape, if he simply asked or endeavored to persuade the prosecutrix to have intercourse with him.

5. The court erred in failing to define attempt to rape as defined in article 640 of the Penal Code. That is to say, in failing to charge that if the jury believed beyond a reasonable doubt that a rape, though not committed, was attempted by the use of force, but not such as to bring the offense within the definition of assault with intent to commit rape, then the jury might find the defendant guilty of an attempt to rape.

6. The court erred in failing to charge the jury upon assault with intent to rape, as the force necessary to constitute that offense is necessary to be defined to and be considered by the jury in determining as to whether the force actually used, if any, would come within the definition of the force necessary to be proven to establish an attempt to rape.

7. The court erred in charging the jury, in substance and effect, to find the defendant guilty of attempt to rape.

8. The court erred in its refusal to give defendant's requested charges from 1 to 5 inclusive. Penal Code, arts. 634-636 and art. 640; Castillo v. State, 29 Texas Crim. App., 127; McAdoo v. State, 35 Tex.Crim. Rep..

The court erred in its charge to the jury in failing to define attempt, either in the language of the statute or as used in common language; thus authorizing the jury to convict of attempt to rape, if defendant had indicated by word or deed a desire to have carnal intercourse with the prosecutrix, or had made the slightest effort, by request or otherwise, to gain her consent thereto. Code Crim. Proc., arts. 714, 715; Penal Code, arts. 1, 3, 9.

The court erred in overruling defendant's motion for new trial, as made, upon the ground that the verdict of the jury was contrary to the evidence, in that the evidence showed nothing more than improper and lascivious conduct towards the prosecutrix on the part of the defendant.

Defendant merely endeavored to persuade the prosecutrix to submit to him, or, as she expresses it: "He pushed me over into a sitting position on the side of the bed; then he sat down by me and talked to me; kept talking to me; told me it was not wrong, and kinder felt of me. He kept trying to persuade me that it was not wrong," etc. Defendant did not expose his own person, or even unbutton his pants, and merely fondled and felt of the person of the prosecutrix; finally voluntarily desisted, left the room and house, saying to the prosecutrix he was going down in town. She remained at the house; went into the room across the hall, and was playing on the organ when he returned a half hour later. She then played an accompaniment to him while he sang, and altogether conducted herself that afternoon, that night, and the next day as though nothing extraordinary had happened, saying nothing to anyone in regard to the affair. McAdoo v. State, 35 Tex.Crim. Rep.; Bozeman v. State, 34 Tex. Crim. 503; Allen v. State, 36 Tex. Crim. 381; Callison v. State, 37 Tex.Crim. Rep.; Robertson v. State, 30 Texas Crim. App., 498; Marthall v. State, 34 Tex. Crim. 22; Mitchell v. State, 33 Tex.Crim. Rep.; 9 Texas Crim. App., 53, 137, 567; 12 Texas Crim. App., 194; 15 Texas Crim. App., 275; 17 Texas Crim. App., 565; 22 Texas Crim. App., 529; 24 Texas Crim. App., 366; 28 Texas Crim. App., 227; 30 Texas Crim. App., 662; 32 Tex.Crim. Rep.; 34 Tex. Crim. 26, 479; 34 S.W. Rep., 281; 10 Texas Crim. App., 552; 14 Texas Crim. App., 162; 16 Texas Crim. App., 535; 18 Texas Crim. App., 485; 23 Texas Crim. App., 73; 27 Texas Crim. App., 317, 330; 29 Texas Crim. App., 241; 31 Tex. Crim. 371; 33 Tex.Crim. Rep., 385, 412; 29 S.W. Rep., 1078.

John M. Duncan, for appellant, also filed an able written argument in support of the propositions stated in his brief.

Mann Trice, Assistant Attorney-General, for the State. — Force is not a necessary element of an attempt to rape a female under the age of 15 years. Carnal knowledge of such female is per se rape, whether with or without consent. This conclusion necessarily follows from the language of the statute defining the offense; that is, "The carnal knowledge of a female under the age of 15 years (other than the wife of the person) with or without her consent, and with or without the use of force, threats or fraud." Penal Code, art. 633.

It has been repeatedly held that "this offense has elements which do not constitute a technical assault." Melton v. State, 24 Texas Crim. App., 286; Williams v. State, 1 Texas Crim. App., 90; Burney v. State, 21 Texas Crim. App., 565; Moore v. State, 20 Texas Crim. App., 275. Attempt to rape is a substantive offense for which indictment may be found and conviction had. Reagan v. State, 28 Texas Crim. App., 227; Franklin v. State, 34 Tex.Crim. Rep..

It is uniformly held that where the offense is against a female under the age of consent, it is not necessary to negative the consent or aver that force, threats, or fraud were used. 1 Whart. Prec. Indict., 189, et seq.; 1 Bish. Crim. Proc., sec. 481.

Therefore sexual intercourse with a female under the age of consent constitutes rape, without reference to whether she consented or whether force, threats, or fraud were used to effect the purpose. Anschicks v. State, 6 Texas Crim. App., 525; Mayo v. State, 7 Texas Crim. App., 342; Callison v. State, 37 Tex.Crim. Rep..

The question is, "did the defendant at the time have the ulterior purpose of committing a rape, that is, of penetrating the female organ with his male member? If he had this purpose, the female being under the age of consent, it would be rape." Allen v. State, 36 Tex.Crim. Rep.. Did this defendant have the ulterior purpose of having carnal intercourse with Belle Beauchamp; if so, he is guilty of an attempt to commit the offense of rape. The definition of attempt to commit rape is perfect and complete. The court, after instructing that the jury must believe from the evidence beyond a reasonable doubt that Belle Beauchamp was on the day alleged under the age of 15 years, further said, if he "did attempt to have carnal knowledge of said Belle Beauchamp, then you will find defendant guilty of an attempt to commit rape." This sets forth the gist and constituent elements of the offense.

There was no evidence suggesting the special instructions in the line that if the appellant simply intended to fondle the female, he could not be guilty of assault to rape or attempt to rape. This also rendered it unnecessary to charge on aggravated or simple assault.

The uncontradicted evidence shows that the female was under the age of consent, and that appellant attempted to have carnal intercourse with her, that is, sought to have such intercourse. There is no evidence suggesting any other purpose. Therefore the argument of appellant on this line is without support in the evidence.

1. Attempt to Commit Rape — Statutory Construction.

We have no statute expressly declaring an attempt to commit rape to be an offense. Penal Code, article 640, provides: "If it appear on the trial of an indictment for rape that the offense, though not committed, was attempted by the use of any of the means spoken of in articles 634, 635, and 636, but not such as to bring the offense within the definition of an assault with intent to commit rape, the jury may find the defendant guilty of an attempt to commit the offense and affix the punishment prescribed in article 608." This statute specifically points out the manner, means, and method which must be intended by the accused in order to constitute the offense.

2. Same — Force.

No person, in this State, can be guilty of an attempt to commit rape unless the proof shows that an attempt was made by the use of force, and the force intended to be used is that defined in article 634; that is, the force intended to be used must be reasonably calculated to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. When the force used amounts to an assault, it ceases to be a mere attempt, and would be an assault to commit rape; for the two offenses have come together, the attempt has ceased, and the assault has taken its place. Where force is actually used, then it is no longer a mere attempt.

3. Same — Age of, and Consent by, Female.

In attempt to rape, the age of the female has nothing to do with the question, it being mainly a question as to the intended use of force. The law requires that the accused intended the use of the force defined in article 634, and though the female was under the age of 15 years, this did not dispense with the necessity of proving such force. And in this offense, the law presupposes that she was not consenting. She could not, at the same time, resist and consent. In this respect, the law of attempt to rape differs from the law of rape.

HENDERSON, Judge, while agreeing with the result reached, does not concur in some of the reasoning of the opinion.

HURT, PRESIDING JUDGE.

Appellant was convicted of an attempt to commit a rape upon Belle Beauchamp, and his punishment assessed at seven years in the penitentiary; hence this appeal.

There are two counts in the indictment. The count which charges the rape alleges that Belle Beauchamp was under the age of 15 years. The second count is for assault with intent to rape Belle Beauchamp, it not being alleged that the assaulted party, Belle Beauchamp, was under the age of fifteen years. The assault is alleged to have been made with force, threats, and fraud, and without the consent of Belle Beauchamp. After the testimony was introduced, the court instructed the jury as follows: "Rape is defined by law, among other things, 'as the carnal knowledge of a female under the age of 15 years, other than the wife of the person, with or without her consent, and with or without the use of force, threats, or fraud.' The charge of rape included the offense of an attempt to commit rape. If the jury believe from the evidence beyond a reasonable doubt that Belle Beauchamp was, on the day alleged below, under 15 years of age, then you will not further consider whether or not she was willing and consenting to carnal intercourse with defendant, or whether or not force, threats, or fraud was used by defendant; but if, in addition thereto, you further find, beyond a reasonable doubt, that defendant Dr. R.B. Warren, in the county of Smith, and State of Texas, on the 7th day of March, 1896, and prior to the filing of the indictment herein, did attempt to have carnal knowledge of said Belle Beauchamp, then you will find the defendant guilty of an attempt to commit a rape, and will assess his punishment at confinenient in the penitentiary for any term of years, not less than two." Counsel for appellant requested the court to instruct the jury as follows: "You are further charged, that before you can convict the defendant of an attempt to commit rape you must believe from the evidence, beyond a reasonable doubt, that he sought to have carnal connection with the prosecutrix by the use of force, but not such force as to bring the offense within the definition of an assault with intent to commit rape, as defined in the main charge, and if you should not believe such force was used, then you will acquit the defendant, or find him guilty of aggravated assault, in case you find that the offense, if any, comes within the definition of that offense, as defined in the main charge." This instruction was refused by the court.

Appellant was convicted of an attempt to rape the prosecutrix. Counsel for appellant complains of the charge of the court given, and also insists that the requested instruction should have been given. We must test the charge of the court by the law of the case. At common law a party could be convicted for an attempt to commit a felony, the punishment being fixed either by common law or by act of parliament, graded by the character of the offense attempted. Article 3 of our Penal Code of 1895 provides: "In order that the system of penal laws in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense and the penalty affixed, thereto by the written law of this State." Article 1 provides that "the design of enacting this Code is to define in plain language every offense against the laws of this State, and affix to each offense its proper punishment." It has done so. We have no law in this State providing or declaring in these words "that an attempt to commit rape is an offense." If we had such an act, merely declaring that an attempt to commit rape would be an offense, with the punishment affixed thereto, we might then conclude that if a party was guilty of attempting to have carnal knowledge of a girl under 15 years of age, with her consent, that, as the consummated crime would be rape, therefore he would be guilty of an attempt to commit rape. But we have no such act. Therefore appellant must be convicted under the law as we find it written. What is the law? Article 640 provides: "If it appear on the trial of an indictment for rape, that the offense, though not committed, was attempted by the use of any of the means spoken of in articles 634, 635, and 636, but not such as to bring the offense within the definition of an assault with intent to commit rape, the jury may find the defendant guilty of an attempt to commit the offense, and affix the punishment prescribed in article 608," which is "confinement in the penitentiary for any term of years not less than two." Article 640 draws a distinction between an attempt to commit rape and an assault with intent to commit rape. It is not necessary for us in this opinion to point out the difference between the two offenses. Suffice it to saythat the statute makes the difference. Now, to constitute this offense an attempt to rape must be shown; and this attempt must be made by the use of one of the means spoken of in articles 634, 635, and 636. There were no threats or fraud used in this case, and therefore the State was forced to establish the fact that the attempt was made by the use of force — that force defined in article 634. Said article reads as follows: "The definition of 'force' as applicable to assault and battery applies also to the crime of rape, and it must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength, and all other circumstances of the case." No person in this State can be guilty of an attempt to commit rape, unless the proof shows that an attempt was made by the use of force, and the force intended to be used must be reasonably calculated to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. It must appear that it was reasonably sufficient to overcome resistance. A proper construction of this statute in connection with article 640 is that at the time of the alleged attempt it was the intention of the party to use the same force as would make him guilty of rape, or of assault to commit rape, but in the actual attempt he fell short of the use or application of such force as would bring the offense up to an assault with intent to rape, for when the force used amounts to an assault then it ceases to be a mere attempt, but would be an assault to commit rape; then the two offenses come together; when the attempt ceases, the assault begins and takes its place. And if the force actually used is such as to constitute the offense an assault with intent to commit rape, then it is no longer a mere attempt. The fact that the party was under 15 years of age has nothing to do with this question. To constitute this offense, as we have said, the attempt must be made, and the intention to that character of force above described must also be established by the proof. As we have said above, our statute does not stop by stating that you can punish an attempt to commit rape, but it specifically points out the manner, method, and means which must be intended to be used by the accused in order to constitute this offense. If the statute was general, and did not specifically point out and require that the party must intend to use force, such as is defined in article 634, we might then conclude that what was done by the accused in this case was an attempt to commit rape, because, as we have said above, rape can be accomplished on a girl under 15 years of age with her consent. But our statute is particular in regard to this matter, and requires that the proof must show that the defendant intended to use that particular force which is defined in article 634. To these acts and intentions our Code has affixed a penalty. This offense is called an attempt to commit rape. This offense has been defined and the punishment affixed, and we know of no other attempt to commit rape, except as named in article 640. The charge of the court was radically wrong. It did not require the accused to intend to use any character of force. The law requires that he should intend to use that character of force which was reasonably calculated to overcome resistance. This presupposes that she was not consenting. She could not, at the same time, resist and consent. We are not treating of an assault to rape a girl under the age of 15 years.

Reversed and remanded.

DAVIDSON, Judge, concurs.

HENDERSON, JUDGE.

I am not prepared to agree with some of the reasoning of majority of the court. However, I agree to the result. As I understand the evidence, this showed that appellant was not guilty of a mere attempt, but, if guilty of anything, it was an assault with intent to commit the offense charged; and I do not believe that the facts and circumstances in proof authorized the learned judge to submit an attempt to commit a rape at all. At any rate, if he undertook to submit an attempt to commit a rape on the person of the prosecutrix, he should have instructed the jury what constituted such attempt, and have further instructed them what constituted an assault with intent to rape, and in that connection should have informed the jury that, if the action of the defendant constituted an assault with intent to rape, they could not convict the defendant of an attempt to commit rape. For the failure to so instruct the jury, I believe the judgment of the lower court should be reversed, and the cause remanded.

DR. R. B. WARREN v. THE STATE.

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