Robertson v. State

31 Tex. 36 | Tex. | 1868

Lindsay, J.

—This appeal was taken by the appellant from a judgment and sentence against him in the district court of Gonzales county, upon an indictment for an attempt to commit a rape upon Leonora Bussell, a female.

It is contended that the indictment upon which the conviction was had is defective and insufficient. The special errors assigned are: 1st. That the court erred in overruling the motion in arrest of the judgment. 2d. That the indictment did not charge that the attempt was made upon a woman. And 3d. That the indictment charges no felonious intent. All the errors assigned are predicated upon the idea of the insufficiency of the indictment; which, if true, would be equally available in a motion to quash or in arrest of judgment. The latter course was adopted, and we are now simply called upon to test the sufficiency of the indictment by the law. The indictment charges, in due form, we think, that the appellant made an “ assault upon a female, with intent feloniously to ravish and carnally know her, against her will and consent.” These facts, thus stated, make up the very definition of rape.

This is a statement of the facts, which is the essence of all pleading, and from which all legal deductions are made. But it is objected to the indictment that the word female is used in the indictment, while the statute uses the word woman in denouncing attempts to commit the offense of rape. The Criminal Code, (Paschal’s Dig., Art. 1630, p. 398,) directs that all words are to be construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed. In common parlance there can be no misunderstanding of the term female, for it is rarely, if ever, used, except by very prudish persons, in reference to the sex of any other portion of the animal creation than the human species. The English language is sufficiently copious and fertile to furnish distinctive designations of the sexes of the rest of animated nature without recourse to this generic distinction. In common language they are usually characterized as a mare, a cow, a ewe, a sow, &c., and no one is apt to infer, when the term female is used, that anything else is referred to than a woman. Besides, in article 2184 of the Criminal Code, (Paschal’s Dig., p. 446,) the word .female is the term used in the definition of rape. Hence, it is obvious in legal contemplation, under our criminal system, that the terms woman and female are convertible. So, as well in common language as in law, there could be no misunderstanding of the term “female” in the indictment.

The last assignment of error is equally untenable. The charge is, that the accused did unlawfully assault the female with intent feloniously to ravish her. The mere unlawful assault would not have been a felony; but coupled with the intent charged it thereby became felonious. We see no valid reason for interfering with the judgment and sentence of the court below. It is therefore

Affirmed.