Albert Jenkins v. The State, 1 Tex. Ct. App. 346

Winkler, J. The appellant was tried and convicted in. the district court of McLennan county on a charge of rape,, alleged to have been perpetrated on one Laura Austin, in said county of McLennan, on the 8th day of January, 1876,. and has appealed to this court, and seeks a reversal of the-judgment rendered against him on the following assignment, of errors: 1st. The court erred in its charge to the jury. 2d. The court erred in its charge to the jury in omitting-to give the law of the case in reference to the statutory definition of 66 force,” as applicable to the offense of rape. 3d.

The court erred in overruling defendant’s motion fora new trial. 4th. The court erred in overruling defendant’s motion in arrest of judgment. 5th. And because the verdict of the jury is contrary to-the law and the evidence. The errors assigned will be considered, so far as necessary,, in their order. The 1st error assigned is identical with the 1st ground set out in the motion for a new trial, and relates to the charge of the court as given to the jury. The charge complained of by counsel for the appellant we find embodied in the transcript of the record in these words : “ 3d.

No matter how loose in morals or unchaste in behavior a woman may be, it will not excuse or justify, or even palliate, an offense in any man in forcibly violating her person against her will; but, if a woman charges that any person has committed a rape upon her body, the defendant has a right to put in issue evidence as to the character of the female as to her chastity—not for the purpose of justifying or excusing the commission of the offense charged, if the jury should find that one was committed, but the jury may take into consideration whatever evidence may be before them as to her chastity or want of virtue, in determining the weight and credibility to be attached to her testimony, or its probable truth or falsity in reference to the commission of the alleged offense.” In order that the applicability of the charge to the evidence may appear, we extract from the statement of facts such portions as relate to the chastity of the prosecutrix.

Laura Austin, witness for the state, the person upon whom the rape is alleged to have been committed, on cross-examination says : “I am not a married woman; I never have been married; I have one child.” Monroe Truett, state’s witness, says: “ Her general character for chastity is ‘ unproper.’ ” Amanda Whitaker, state’s witness, says: “ I know the general reputation of Laura Austin for chastity in the community in which she lives ; it is good.” • The law on the subject of impeaching the character of the female upon whom a rape is charged to have been committed—when the alleged offender is on trial for the offense— as to the object of the inquiry and the manner of making it, as well as the effect to be produced, has been concisely laid down in the opinion of our supreme court in the well-considered case of Pefferling y.

The State, 40 Texas, 489, as follows: 66 Unquestionably, in trials for rape, or assaults with intent to commit rape, the character for chastity of the female alleged to have been injured may be impeached—not as evidence of justification or excuse for the offense, but for the purpose of raising the presumption that she yielded her assent, and was not in fact forced.” The charge complained of is erroneous in that it does not explain to the jury the object of inquiry into character; meaning that the object is for the purpose of raising the presumption that she had unresistingly yielded her assent to the alleged criminal intercourse, and that she was not in fact forced to yield.

The evidence by which the character of the prosecutrix is attempted to be impeached must be by general evidence of her reputation in that respect, and not by evidence of particular acts of unchastity. She cannot be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself. Evidence of other instances is inadmissible. 3 Greenl. on Ev., sec. 214; 2 Starkie on Ev.,

part 1, p. 305 ; Dorsey v. The State, decided by this court at Austin, 1876, ante p. 33. See the subject discussed in Pefferling v. The State, above referred to, and authorities there cited, 40 Texas, 489. It must be remembered, however, that this right of impeaching the character of the injured person for chastity is intended to benefit the accused by raising, as above stated, the presumption that she had not been forced.

We may further remark that whilst the charge, as given, was erroneous in the particular above stated, yet we are of the opinion that the error committed inured to the benefit of the accused, and that he ought not to be heard to complain; and on this account alone we would not feel warranted in reversing the case. The 2d error assigned—the failure to charge as to force— however, we are of the opinion is more injurious to the rights of the accused, as must be manifest from a careful consideration of the several statutory provisions on the subject.

Eape is defined by the statute to be the carnal knowledge of a woman without her consent, obtained by force, threats, or fraud, etc. Pasc. Dig., Art. 2184. The definition of force as applicable to the crime of rape, as required by statute, is : “ It must be such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.” Pasc. Dig., Art. 2185.

The indictment in this case, if it charges the offense of rape at all as having been committed in any manner known to the law, charges that the criminal purpose was effected by force. The mind naturally inquires, what kind of force, and what amount of force, makes the act criminal in contemplation of law? The statute answers the question by saying it must be such force as might reasonably be supposed to overcome such resistance as the party assailed was able to make, under the circumstances by which she was surrounded, and the relative strength of herself and her assailant.

In this case it became necessary for the jury to make this inquiry, in order to determine the guilt or innocence of the accused, and they should have been guided in making the inquiry by a proper charge as to the amount and character of force which would render the act criminal, and a failure so to charge was a material error, injurious to the rights of the accused; and, the attention of the court having been directed to the subject in the motion for new trial, the error should have been corrected and a new trial granted. To maintain an indictment for rape, says Mr.

Archbold, the prosecutrix must prove, 1st, penetration; 2d, that it was done by force, and against her will. Cr. Pr. & Pl. side page 305. In prosecutions of this character something further is necessary than to show_ a failure of consent merely; there must be resistance made by the party assailed in a charge of rape by force. What amount of resistance would be required would depend on the circumstances surrounding* her at the time and the relative strength of the parties.

In this case a proper charge was requisite, as before stated, because it was a part of the law of the case as made by the indictment and the proof, and, being a felony, the charge should have been given, whether asked or not. Pasc. Dig., Art. 3059. On this subject we extract from an opinion of our supreme-court, by Mr.

Justice Beeves, the following, being peculiarly applicable here : “Ho instructions were asked by the defendant, nor was the charge, as given, excepted to or assigned as error, except in so far as it may be considered as being embraced in the assignment alleging error in overruling the motion for new trial on the ground that the verdict was contrary to law. And it is now insisted that the objection to the charge comes too late. In felony the law applicable to the case must be distinctly set forth in the charge, whether asked or not.” Sanders v. The State, 41 Texas, 307.

So here, the charge as given was not excepted to at the time, nor were additional instructions asked. The omission is set out in the motion for new trial, and the ruling of the-court on the motion for new trial is assigned as error. In Fulcher v. The State, 41 Texas, 233, it is said : “ Being a felony, the law, as applicable to the facts of the case in reference to the charge in the indictment, should have been, given to the jury, whether asked or not.” In Lopez v.

The State, 42 Texas, 300, it is said : “ The «charge set forth in the indictment, and the facts in evidence, determine, when attentively considered, what is the law applicable to the case.” Sec, also, Bishop v. The State, 43 Texas, 390.

We have not deemed it necessary to notice further the errors assigned, but, inasmuch as the case must be reversed, we call attention of the counsel for the state to an objection raised to the indictment—in effect, that it does not charge the offense of rape in plain language—and remark that in the •copy before us it may be that the omission of a word probably causes the difficulty. Does it clearly appear who committed the rape ? Because of error in the failure of the court to charge the law applicable to the' case, as above indicated, the judgment of the district court is reversed and the cause remanded.

Reversed and remanded.