Dave McCleavland v. The State, 24 Tex. Ct. App. 202

Hurt, Judge. This is a conviction for assault to rape. The following errors are assigned: (1.) That there was error in that portion of the court’s charge to the jury which instructs them that “the law provides that any person shall assault a woman with intent to commit the offense of rape, he shall be punished,” etc. The word “if” is omitted from between the words “that ” arid “any.” There is a full and correct description of the offense in another part of the charge, and the paragraph complained of is simply to inform the jury as to the punishment.

The omission of the word “if” could not have injured appellant. (2.) “The court erred in that portion of the charge which reads: . ‘The use of any unlawful violence offered to another with intent to injure her,’ ” etc. “Offered” is used, instead of “upon the person,” to define an assault and battery. There was no issue upon the trial as to whether the acts of defendant constituted an assault and battery upon the person of the prosecutrix.

The defense was alibi, fabricated accusation, and that the acts charged, conceding them to have been committed, were not such as to warrant the inference of an intention to rape. There was no error in this charge that resulted in injury to appellant, under the circumstances. (3.) Error in this;. “The intent at the time on the part of the defendant must have, been to overcome all resistance,” etc. The objection is that this charge does not specifically point out the time referred to in the charge.

Now, evidently no juror could have misunderstood what time was alluded to in this part of the charge, when considered in connection with the whole charge.

Clearly the jury must have understood it to be the time when the assault to commit the rape was made, that they must believe it was the intention of the- defendant to overcome all resistance which might be offered by the prosecutrix. (4.) “If defendant assaulted the prosecutrix with a view to fondle with her, and by persuasion induce her to comply and consent to intercouse, it would not be a rape.” The objection urged to this charge is that there is no evidence to support it. If this be so, the charge was favorable, and not at all calculated to injure the defendant.

There was no objection to the charge, and no instructions were asked upon this subject. (5.) “The court erred in overruling defendant’s motion. for new trial, because the conviction was unsupported by the evidence, and because of newly discovered evidence.” The law of the case was fully, clearly and very favorably submitted to the jury; and, while we might not, if jurors, have arrived at the conclusion reached by them, still we doubt the propriety of reversing the judgment upon the ground that the evidence does not support the verdict.

Upon the ground of “newly discovered evidence,” however, we are of opinion that, under the peculiar circumstances of this case, a new trial should have been granted. The judgment is reversed and the cause remanded. Opinion delivered November 9, 1887. Reversed and remanded.