Steve Taylor v. The State, 24 Tex. Ct. App. 299

Hurt, Judge. Under an indictment for rape appellant was •convicted of an aggravated assault and battery. The indictment contained two counts, the one alleging the female to have been under the age of ten years, the other that she was over that age. There was serious conflict in the testimony as to whether the female was under or over the age of ten years at the time of the alleged rape. If under ten, we can not comprehend, under the facts, upon what ground such a verdict was returned. How it was possible to reduce the offense below an assault to rape, we never expect to understand.

On the other hand, if the girl was over ten years of age, the facts strongly showing that she yielded her consent, appellant was guilty of no offense. The learned judge charged the jury upon the subject of aggravated assault as follows: “But if you believe from the evidence that there was not such penetration, but that defendant made an assault upon the person of Hattie Gray, not with intent to commit rape upon her, but with intent to have sexual intercourse with her, with her consent, then you will find defendant guilty of an aggravated assault,” etc.

This charge is abstractly correct, but, when considered with reference to the facts, it was calculated to mislead the jury. If the girl was over ten years of age, and consented, there was no assault of any Kind. If she did not consent, and defendant did not intend to rape her, but intended to have carnal intercourse with her, then there was an aggravated assault. This last view of the case was presented to the jury by the above charge, but the first phase was not, in any part of the charge.

It is shown by a large preponderance of the testimony that the girl consented; and, if over ten years, defendant should not have "been convicted of any grade of offense, and the jury should have keen instructed that, if they believed the girl was over ten, and consented to what was done by defendant, they should acquit. Opinion delivered November 12, 1887.

It is true that the learned judge gave this charge, which follows the above: “If you believe from the evidence that the defendant did, as charged, have carnal knowledge of the said Hattie Gray, but have a reasonable doubt whether such carnal knowledge was obtained with her consent, the defendant should be acquitted, unless you believe beyond a reasonable doubt that Hattie Gray was under ten years of age, in which event consent makes no difference.” In this charge the jury can acquit if they believe defendant had carnal knowledge by consent of the girl, provided she was not under ten years of age.

The proof clearly negatived carnal knowledge; hence the hypothesis upon which acquittal could rest is eliminated. Again, there is no allusion whatever to an assault. The jury are in no part of the charge told that defendant should be acquitted of assault to rape, or aggravated assault, if the girl was not under ten years of age, and consented to the act of defendant. The proof in the record cogently tends to establish these facts, and it was of the first importance to the defendant to have this proposition submitted to the jury.

We are of opinion that if the jury had been thus instructed, under the facts of this case, a different verdict would have been returned. For the omission in the charge, the judgment is reversed and the cause remanded. Reversed and remanded.