No. 6550 | Tex. Crim. App. | Dec 14, 1921
Lead Opinion
Conviction is for rape upon a female under 18 years of age; penalty 5 years in penitentiary.
Irene Brown, the prosecutrix, is a negro girl who was attending school in her neighborhood. Appellant, a colored youth about 19 years of age, lived in the same community, and was acquainted with prosecutrix, though the evidence shows he had never been out with her to any parties or entertainments. No toilet had been provided for the convenience of the scliool children, but they were accustomed to retire to the woods back of the schoolhouse when necessary to attend calls of nature. Prosecutrix claims that on the 8th day of November, 1920, during the noon recess, while out in the woods to relieve herself, she met appellant, and the act of intercourse took place upon which this prosecution is based. Appellant was not going to school and this meeting, she claims, was not by previous appointment, but accidental, and was the only act of intercourse between them. She developed pregnancy, and attributes her condition to appellant. ' Accused vigorously denied his presence at the time and place fixed by the girl, and attributes her condition to her stepfather, and supported the theory by a rather remarkable story told by his mother and one of her kinsmen of seeing the girl and her stepfather copulating in plain view of the road, although there appeared to be near a weed patch in which they might have hidden. The jury rejected this theory.
Omitting formal parts, the indictment alleged that appellant had carnal knowledge of Irene Brown, a female under 18 years of age and not appellant’s wife. Motions to quash and in arrest of judgment were made, claiming that, if Irene Brown was over 15 years of age and under 18, the indictment should have alleged that she was of previous chaste character. Previous un-chastity is made a defense between 15 and 18, but it is not necessary for the state to allege previous chastity. That is presumed until the defense makes the issue.
“Now, if the evidence shows or tends to show that Irene Brown was over the age of 15 years when this alleged carnal intercourse took place, or if you have in your minds a reasonable doubt as to whether she was over the age of 15 years and was of previous unchaste character, then you will find the defendant not guilty and so say by your verdict.”
We find this issue was presented to the jury in the third paragraph of the court’s charge, and a repetition thereof was unnecessary and would have been improper.
The court gave a charge on alibi which protected appellant in this defensive theory, and it was not required of the court to submit the same issue in other terms.
Binding no errors in the re'cord, the judgment of the trial court is affirmed.
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Rehearing
On Motion for Rebearing.
It is again insisted that the indictment was bad, in that it failed to state that the prosecutrix was of previous chaste character. The statute is found in the Acts of the. Thirty-Fifth Legislature, Fourth-Called Session, c. 50. The caption reads thus:
“An act to amend article 1063, title 15, chapter 8, of the Revised Penal Code of the State of Texas 1911, defining rape and declaring an emergency.”
As applied to the phase of rape upon which this prosecution depends, it is defined as: !
“Carnal knowledge of a female under the age of eighteen 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 section concludes with these words:
“Provided, that if the woman is fifteen years of age or over, the defendant may show in consent cases, she was not of previous chaste character as a defense.”
We have heretofore construed this statute as evidencing the intent of the Legislature to advance the age of consent to carnal knowledge to 18 years and to declare that the one accused of the offense might justify his act of carnal knowledge with the consent of the prosecutrix over 15 years of age by showing that she was of previous unchaste character. Norman v. State, 89 Tex. Crim. 330" court="Tex. Crim. App." date_filed="1921-05-11" href="https://app.midpage.ai/document/norman-v-state-3950133?utm_source=webapp" opinion_id="3950133">89 Tex. Cr. R. 330, 230 S. W. 992.
We have also expressed the opinion that the proviso mentioned was not descriptive of the offense, so as to require that the indictment should contain an averment of the previous chastity of the female. Kerley v. State, 89 Tex. Crim. 199" court="Tex. Crim. App." date_filed="1921-04-20" href="https://app.midpage.ai/document/kerley-v-state-3923545?utm_source=webapp" opinion_id="3923545">89 Tex. Cr. R. 199, 230 S. W. 163. In reaffirming this view in the instant case, we are- constrained to think we' were not in error.
“It is necessary to negative an exception or proviso contained in a statute defining an offense where it forms a portion of the description of the offense, so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted. Where, however, the exception or proviso is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation, being a matter of defense. As the rule is frequently stated, an exception in the enacting clause must be pleaded; but an exception in a subsequent clause or statute is matter of defense to be shown by the accused.”
A review of the various decisions of this court upon the subject we deem unnecessary;
“The doctrine is that the indictment on a statute, like any other, must show a prima facie case, and it need not do more. So that, if the statute has exceptions, provisos, and the like, those which are affirmative elements in the ■ offense must be negatived in averment, while those in the nature of defense may be disregarded. Such is the principle; in its application, much depends on the location of the several clauses or provisions in the statute.”
The motion for rehearing is overruled.