Mason v. StateMason v. State
- Reporters:
- , ,
- Before:
- Willson
Thеre are four counts in the indictment, two charging the offense of kidnapping and two the offense of abduction of a female for the purpose of prostitution.’ Defendant excepted to the indictment because it charged separate and distinct felonies. His exception was overruled, and he was tried upon all the сounts and convicted of simple abduction; that is, that character of abductiоn which is punishable by fine only.
Kidnapping and abduction are unquestionably separatе and distinct offenses. Their elements are not the same, and the punishments prescribеd are different. They are, however, as charged in this instance, offenses of the sаme character. Penal Code, arts. 521, 527.
It is the rule of the common law, which rule has bеen followed in numerous decisions in this State, that it is not a valid objection to an indictment that it charges separate and distinct offenses in several counts, even wherе the offenses charged are felonies, if they be of the same character, *30differing only in degree. The State v. Dorsett, 31 Texas, 656; Weathersby v. The State, 1 Texas Ct. App., 643; Waddell v. The State, 1 Texas Ct. App., 720; Barnwell v. The State, 1 Texas Ct. App., 745; Irving v. The State, 8 Texas Ct. App., 46; Mathews v. The State, 10 Texas Ct. App., 279; Bolеs v. The State, 13 Texas Ct. App., 650; Dovalina v. The State, 14 Texas Ct. App., 312; Bean v. The State, 17 Tеxas Ct. App., 60; Shubert v. The State, 20 Texas Ct. App., 320; Chester v. The State, 23 Texas Ct. App., 577; Keelеr v. The State, 15 Texas Ct. App., 111. It was not error to overrule the exception to the indictment.
Instead of the eleventh paragraph of the charge we think the first special instruction requested by the defendant should have been given. If the defendant at thе time he took the girl away from her home was mistaken as to her age, believing her tо be over 17 years of age, and if such mistake did not arise from a want of proper care on his part, and if the girl went with him voluntarily, he would not be guilty of either of the offensеs charged in the indictment. There was evidence which demanded the instructions requestеd, and such instructions were correct in law. Penal Code, arts. 45, 46.
It was not error to omit to charge the law as to accomplice testimony. If the girl charged to havе been kidnapped was under 15 years of age she could not be an accоmplice to the offense. If she was under 14 years of age she could not be accomplice to abduction. If she was over 15 years of age and consentеd to being taken away from her home by the defendant, no offense was committed by the defendant in taking her away. So, under no state of facts, could the girl be regarded as an accomplice within the meaning of the statute relating to accomplice testimony.
But we are of the opinion that if there was no error in refusing the special instruction as to mistake requested by the defendant, the conviction should be sеt aside because of the unsatisfactory, uncertain, and insufficient charactеr of the testimony upon which it is based. There is no positive evidence, exceрt that of the girl, as to her age at the time she was taken away by the defendant. She tеstified that she was at that time 13 years old. On the other hand, it was proved that before thе alleged offense she told the defendant that she was 18 years old, was a woman grown, and had been the mother of a child. There was other evidence tending strongly to shоw that at the time of her alleged abduction she was more than 15 years of age. Wе think the evidence preponderates that she was over that age. If she was over said age and consented to go with defendant, he is not guilty as charged. That she did сonsent to go with him and to remain with him for several days, having sexual intercourse with him, is, we think, clеarly established by the evidence, notwithstanding her denial that she went with him voluntarily, but was forced by him to do so.
We think the effect of the verdict finding defendant guilty of simple *31abduction is to bar any further prosecution against him. upon the charge of kidnapping and upon thе charge of felonious abduction. If tried again he should be tried only for the offense of which he has been convicted.
Because the court erred in refusing said special instruction, and because of the insufficiency of the evidence, the judgment is reversed and the cause is remanded.
Reversed and remanded..
Judges all present and concurring.