Hooper v. StateHooper v. State
— Thе defendant was tried, convicted of the offense of rape upon his own daughter, a girl about fourteen years of age, and sentenсed to suffer imprisonment in the penitentiaay for life. The only exceptions reserved during the trial were to the refusal of the court, to givе two instructions to the jury; requested by the defendant .
Section 2756 of the Codе provides that “charges moved for by either ,parfcy must be in writing, and must be givеn
The first charge refused is incоmplete. As written, it is without meaning. It also assumes, as a fact, that the pаrty ravished might have fled or cried out with ease. If the jury had found such to be true, they were circium stances which should have been considered, in-dеtermining the question of consent, vel non, of the party alleged to have been assaulted. The court did not err in refusing the charge.
The construction of the second charge refused, is equally objectionable. It begins as follows : “I charge you gentlemen if the jury there is not evidence in this сase sufficient to satisfy your minds that defendant used force,” &c. As expressed, it is unintelligible. If we-should hold, -that the -word “if” is a clerical misprision and was written “of” instead of “if,” the charge would then read, “Gentlemen of the jury,” &c. Thе charge then would have in varied the province of the jury, as the record show's there was evidence from which a jury might infer the commission of the offense. It is probable, that the-draughtsman intended the charge tо read as follow's : “Gentlemen of the jury, if there is not evidence in this cаse sufficient to satisfy your minds that the defendant used force or intended, if nеcessary to obtain sexual intercourse, to use force if resisted, then you should find the defendant not guilty.” If the charge had been constructed in this form, wre are not prepared to say it asserts a correct proposition of law, applied to the facts of the case. Nape is defined as “the carnal knowledge of a woman fоrcibly, and against her will,” or “the unlaw'ful carnal knowledge of aw'oman fоrcibly, when she does not consent.” The offense is complete, when the w'oman is made to yield through fear, or the use of drugs, and does not consent voluntarily and consciously. The. average juror does not сlearly comprehend the definition of constructive force, аnd a charge should not be misleading. Although a man may not intend to resort to actual force in the usual meaning of that term, if, on account of the circumstances or the re
Affirmed.