251 S.W. 221 | Tex. Crim. App. | 1923
Appellant was convicted in the District Court of Knox County of an assault with intent to rape, and his punishment fixed at two years in the penitentiary.
Appellant was charged with an assault upon his niece, an orphan girl who for many years prior to the occurrence which led to this prosecution, had been an inmate of his home in Knox County. She was sixteen years old at said time, and testified that in December, 1919, in appellant's barn, he made an assault upon her, grabbed her around the shoulders and tried to throw her down, telling her that he intended to have sexual intercourse with her. She said she begged him to desist and that he finally did so, but cursed her and whipped her with a rope and told her that she was running around with the boys but that he had her there for his own use. She further testified as follows: "I lived with Ed Wilson up until 1919. I left his home in April 1920 and went to Lorain to my aunt, Mrs. Lee Graham." *374
We have no doubt of the fact that one who takes hold of the person of a female under the age of eighteen years in this State, with the present purpose of then having carnal knowledge of her either with or without her consent, is guilty of an assault with intent to rape. Croomes v. State, 40 Tex.Crim. Rep.; Alexander v. State, 58 Tex.Crim. Rep.; Cromeans v. State, 59 Tex.Crim. Rep.; Hightower v. State,
The only defensive theory was that prosecutrix was not a chaste female at the time of the alleged assault. Our Legislature in 1918, (see Chap. 50, Acts Fourth Called Session, 36th Leg.), wrote into the rape statute that if the female be fifteen years of age or over, the accused may show, in consent cases as a defense, that such female was not of previous chaste character. This has been construed to mean that she had not theretofore had carnal knowledge of some man. Norman v. State,
Believing that the learned trial judge fell into error in declining to submit the question of the previous chaste character of prosecutrix at the time of the alleged assault, and that there was evidence in the record tending to raise said issue, the judgment of the trial court will be reversed and the cause remanded.
Reversed and remanded.