*1 Felix Lewis v. State. 1950. January No. 24571.
Rehearing Denied March 1950. West, Triplett, George Lyman, Pittman, C. Pogue C. & Christi, Corpus Schraub, appellant. Miller, H. Attorney, John Sinton, Schneider, District R. E. Blackburn, Jr., County Attorney, George West, George Austin, Attorneye, for the state. State’s *2 GRAVES, Judge. Margaret charged upon one, Appellant rape Mozelle was with conviction, fraud,
Lewis, by force, upon threats and penalty jury. assessed the of the death testimony that this was the of The shows age. years contained two and was sixteen of The indictment force, charging rape threats of a woman counts: the first fraud; count, rape upon under the a female and the second eighteen age years appellant. of and not the wife jury, only The trial court the first count the submitted charge although paragraph did set in thereof the its second Code, rape Art. provided in the Penal forth the definition of 1183, as follows: “Rape knowledge a her con- is carnal of woman without the * * * fraud; by force, the carnal or or sent obtained threats eighteen
knowledge age years other under the of female person than or without her consent the wife of the with force, or fraud.” with or without the use of threats objections the complaint court’s is made in the Much charge portion definition of relative to the inclusion in such age eighteen years. relating rape a of of female under the judge correctly of the trial It is asserted that the election charge upon an of rape force was abandonment alone consent, age charging and the record rape of count under the jury on alone to the that such cause was submitted shows as says charged Appellant that the inclusion the first count. age preliminary definition rape of in the of under led the consent they upon could convict to believe that thereof considering count, privilege both gave of either counts, them constituting having been set forth in the same charge, however, found, rape. crime It of facts, jury were told applied to the wherein the law was by force, a rape a in this case the indictment given aof and no mention was then definition óf such force rape age This was therein. was mentioned of consent under rape, preliminary definition mention such but a casual rape should thereafter, plain that such court it made v. of Serio to the case proven are cited force alone. We be find to do not State, App. which 22 Tex. S. W. prosequi been entered point. In a nolle that case ten-year-old child, charging rape upon a leav- first count charging force, case, rape by ing, present count as in this against consent. upon trial woman her The threats and fraud together, is, charged upon connected counts court both consent, rape age rape of a female under the allowing against consent, etc., a conviction under woman either count of such indictment. age consent count was
This record the under shows that cursory jury, and we think its mention submitted to the not jury. Such a not have nor misled this mere state confused consent, alone, age standing rape ment relative to under State, v. 55 Tex. R. is not error. See 819; Cr. S. W. Salazar *3 392, 848; State, (2d) Fite v. Tex. R. 140 S. Cr. W. Calyon State, 83, v. R. 591. 76 Tex. Cr. 174 S. W.
Appellant complains next failure of relative to a the trial requested charges specially court certain to the concerning by the amount and character of resistance offered prosecutrix the to her father’s and efforts to ac- advances complish matters, pos- the acts herein. These while sibly properly not shown the to have been called to trial court’s attention, nevertheless, will, general be considered under the proposition girl gave to whether not the her consent to course, her pre- father’s unnatural acts. Of under the court, girl sented duty the it became the this of to resist her power, father’s and to advances thus use all force in her the taking previous relationship into the consideration between the parties surrounding time; and the circumstances at and the necessary, accused must such have used as was such might reasonably supposed resistance, all to overcome tak- strength parties consideration the of the relative and other Ann. circumstances of case. See Art. Vernon’s C., p. Tex. Vol. and cases cited thereunder. Relative offered, to the force used and the resistance quote girl testimony from the as found in the record and supplemental summarized in the state’s brief follows: years “Prosecutrix is a of age, a little over 16 of and daughter weighed is Appellant. pounds She about 130 weighed he pounds; and about and he one powerful most men County. in Live Oak That on or about the day May, 1949, prosecutrix 18th picture to a show returning Cherry, with one telephone John her office, show, which was a picture about block from about night. father, Appellant, 10:30 that That her met her when bitch, rat, she came in. he her That called a son little good nothing. hair, slapped pulled and a her her That he twice, times, two or her down kicked face three knocked and her on the knee two or times. That she still had scar three on knee That he her and that her knee was still sore and blue. get go Cherry, her into his drove to made car find John got Highway Coke; he turned off barbecue stand and Clegg they finally No. 281 and road where became drove on the helped out stuck Burrell and son them sand. That they of the sand and out to the Burns ranch. That after drove arriving drink, pasture he her tell- the Bums made take slap her that if of her head off. she didn’t he would the side car, pushing out, get He her and then made her out of the threatening clothes, knock down told her to her her take off ‘slap and he and her off’ if take them off face she didn’t taking her off she stood would tear them off. That after clothes get crying, she couldn’t afraid to run because she knew there opened begging away, her then and him to let alone. That he grabbed car, her door the shoulders shoved seat, got her down beside inside car on the and sat kissing her, fondling her another drink her and made take whiskey. crying asking her him to continued leave She alone; seat, pushed down held her down he then her on legs down, hair, shoulders, pulled over- her her held her powered raped During her all of which time she her. get ‘doing everything kicking I with feet everything pos- *4 testified, ! T did him off of me.’ further She having my me sibly keep intercourse with could to from father hair, night. him, slapped him, pulled and I his kicked that begged alone. leave me him and him to abused and shamed him me, I got top by my aíid and on He held me down shoulders got anything he just played and do more after out couldn’t my weigh pounds, got top and I me and on me. about down ” powerfully weighs man.’ pounds and is a built father about surrounding suggest parties, the circumstances that We father, being by him, and under his reared she .the degree might tutelage guidance, re- call for different naturally stranger, and were a than if the accused sistance fight power had back at who have weakened her to would say, custody it to that control of his own child. Suffice impressed idea that her resistance his with the we are feigned. actual and not .was Exceptions com- 1 claims that the trial court No.
Bill allowing girl, Margaret prove mitted error in the state to Lewis, Mozelle did that she not consent to her father having alleged intercourse with her at the time in the indict- - ground question question ment on said was mixed of law and fact. think should allowed We the witness have been say gave whether or not her consent she to this unnatural regardless objection. act of her father She could cer- tainly gave answer as to whether or not she her consent. This been, was, by appel- matter could have attacked doubtless attorneys, being pleaded, lant’s matter but the of lack of consent proven. it could be complains Bill No. 2 because of the fact that the state was
permitted prove, appellant’s objection, girl over complained told her mother of the matter about herein as soon morning. as she saw her mother next The was not morning returned home until about 5:00 o’clock in the after having practically night, been out with her father all and as awakened, soon as she she saw her mother and told her about shown, merely outcry this occurrence. No details were but an complaint made, think same was admissible as such outcry. complains Bill appellant No. 3 placed because after had
wife, Lewis, Naomi on the stand and had shown her testi- mony subsequent May 18, 1949, the date shown in the indictment as the date when the offense therein is alleged occurred, prior to have to the date the defendant complaint charging offense, was arrested on said she urged home, inquiry him to leave which she answered Whereupon, affirmative. on cross-examination of this witness state, why she was asked she asked leave her husband to replied, to which she I knew he hav- “Because had been my daughter.” objected intercourse with answer was This anything to because it did not involve an answer appellant’s attorney witness; had asked ask- the reason for by appellant, him to leave home had not been proper this answer was not in rebuttal or on cross-examination. express opinion We that when had shown that *5 urged urg- his wife reason for such to leave cross-examination, became material matter we see being urged say why no error caused to had thus him. she part by party, A of this transaction was into one and we go remaining opposing party portion think the P., Tex. thereof. Art. Ann. C. See note Vernon’s C. volume, 2; and authorities there in same also Art. Vol. thereunder. cited record, judgment in the will find no error shown
We be affirmed. therefore rehearing. APPELLANT’S motion
ON Judge. BEAUCHAMP, argument, very prepared and able oral
In his well brief original opinion in not that we erred in the contends reversing First, in his the court included case: because this eighteen years charge rape female under definition of special age. Second, failed to certain of requested opinion. the court because original fully charges, in the which were discussed light carefully motion We have reviewed this argument opinion error presented that no and remain of the argument though authori- and additional was shown. Even new motion, us, a result of this ties have been considered as reasoning original presents our opinion think correct and length. writing effectively at we could more might re- the amount of It not be amiss observe adult required An circumstances. sistance differs under different resistance, if act- person naturally present female more would physical good faith, A whose would. woman than strength strength greater her attacker equals or is than the might appear to strength. expected would be to use that What feigned than a child part more on her would be be resistance those making, like capable circumustances would under be judgment as much before us in this case. It is measured too, strength. exercising Then capable by physical one is may naturally expected less resistance a child to exercise person. other the demands of her father than to some case, appellant’s de- Considering all of the facts of the court’s sufficiently placed fense was before the case. any reversible error and we fail to find still rehearing The motion for is overruled.
Hawkins, J., absent.