T. E. Cooper v. The State, 22 Tex. Ct. App. 419

Willson, Judge. I. The indictment charges rape accomplished by force and threats, and is in the usual form. (Will-son’s Cr. Forms, Ho. 374, p. 167, and cases there cited.) It has never been held necessary .that an indictment for this offense should allege the character of the force, or specify the threats used. It is sufficient to allege in general terms that the rape was accomplished by force, or by threats, or by fraud, or by all these means together, II. There is in the record a bill of exception to the action of the court overruling an application made by defendant for a continuance.

There is not however any such application in the record, and, not having the application before us, we are unable to revise this action of the court, as the bill of exception to the ruling upon the same does not disclose sufficient facts to enable us to fully understand and determine the question presented by the bill.

As was said by this court in Swift v. the State, 8 Texas Court of Appeals, 614, “the legal presumptions are all in favor of the correctness of the ruling of the court; and we find no error in the ruling as the matter is here presented, assuming that the facts were as stated in the body of the bill of exceptions and in the explanation of the judge.” III. We are unable to perceive any error in the charge of the court. It limits the jury to a consideration of a rape by means of threats, omitting to instruct in regard to a rape by means of force.

This, we think, was correct in view of the facts of the case, Evidently the rape was accomplished by threats. But even if it had been accomplished by force, or by both force and threats, the charge was favorable to the defendant, because it limited the finding of the jury to threats alone. The court is required to give the law applicable to the evidence, and nothing more. (Teague v. the State, 4 Texas Ct. App. 147.) The words “the law applicable to the case,” as used in

Article 677 of the Code of Criminal Procedure, requiring the court to give a written charge to the jury, mean the case as made by the evidence. In the case before us, the case as made by the evidence was a rape accomplished by means of threats, and the court properly restricted the jury to a consideration of that means alone.

If the court had charged in regard to a rape committed by means of force, the defendant would have had good ground of complaint, because the evidence did not warrant such a charge, there being no such force used as would constitute the force defined by the statute. (Penal Code, Art. 529.) In regard to threats, the charge of the court is in the exact language of the law (Penal Code, Art. 530), and is sufficient. IY. As to the sufficiency of the evidence to support this conviction we must hold that it meets and satisfies the requirements of the law. It is legally sufficient.

The positive testimony of the injured female fixes the guilt of the horrid crime upon the defendant, her own father. Her testimony is not contradicted in any essential particular and is corroborated sufficiently to warrant a conviction upon it. Her credibility was a question for the jury to determine. They believed her credible or they would not have found the defendant guilty. It is not the province of this court to pass upon the credibility of witnesses. Whatever uncontradicted and unimpeached testimony a jury has pronounced credible we must regard as credible.

While as jurors we might not have been satified as to the credibility of the prosecuting witness and might not have been willing to convict upon her testimony alone, as a court we have no right to consider and determine but the one question, is the evidence legally sufficient to support the conviction? We must regard the evidence before us as true. The jury have said by their verdict it is true, and we must not, in this respect, question the correctness of the verdict. Being true, it is legally sufficient, and there being no error in the conviction the judgment must be and is affirmed.

If, as found by the jury, the defendant committed the unnatural, inhuman crime of rape upon his own daughter, a mere child at the time, he certainly deserves to suffer the extreme penalty of the law, and the punishment of death assessed against him can not be said to be excessive. Opinion delivered November 27, 1886. The judgment is affirmed. Affirmed.