Hooper v. State , 106 Ala. 41 ( 1894 )

COLEMAN, J.

— The defendant was tried, convicted of the offense of rape upon his own daughter, a girl about fourteen years of age, and sentenced to suffer imprisonment in the penitentiaay for life. The only exceptions reserved during the trial were to the refusal of the court, to give two instructions to the jury; requested by the defendant .

Section 2756 of the Code provides that “charges moved for by either ,parfcy must be in writing, and must be given or refused in the terms in which they are written,” &c. This statute imposes upon counsel, the grave responsibility of preparing charges for the jury with strict care. The court is not authorized to correct or qualify written instructions prepared by counsel, but must give or refuse them, in the terms in which they are written.

The first charge refused is incomplete. As written, it is without meaning. It also assumes, as a fact, that the party ravished might have fled or cried out with ease. If the jury had found such to be true, they were circium stances which should have been considered, in-determining the question of consent, vel non, of the party alleged to have been assaulted. The court did not err in refusing the charge.

The construction of the second charge refused, is equally objectionable. It begins as follows : “I charge you gentlemen if the jury there is not evidence in this case sufficient to satisfy your minds that defendant used force,” &c. As expressed, it is unintelligible. If we-should hold, -that the -word “if” is a clerical misprision and was written “of” instead of “if,” the charge would then read, “Gentlemen of the jury,” &c. The charge then would have in varied the province of the jury, as the record show's there was evidence from which a jury might infer the commission of the offense. It is probable, that the-draughtsman intended the charge to read as follow's : “Gentlemen of the jury, if there is not evidence in this case sufficient to satisfy your minds that the defendant used force or intended, if necessary to obtain sexual intercourse, to use force if resisted, then you should find the defendant not guilty.” If the charge had been constructed in this form, wre are not prepared to say it asserts a correct proposition of law, applied to the facts of the case. Nape is defined as “the carnal knowledge of a woman forcibly, and against her will,” or “the unlaw'ful carnal knowledge of aw'oman forcibly, when she does not consent.” The offense is complete, when the w'oman is made to yield through fear, or the use of drugs, and does not consent voluntarily and consciously. The. average juror does not clearly comprehend the definition of constructive force, and a charge should not be misleading. Although a man may not intend to resort to actual force in the usual meaning of that term, if, on account of the circumstances or the relationsliip of tlie parties, be intentionally and. for the purpose of accomplishing his unlawful purpose, puts her in fear of personal injury or violence, and she yields on account of these influences, he is guilty of rape, although, he may not have intended to resort to actual force, if she refused and resisted. We think the principle illustrated by the case at bar. That the father had unlawful sexual intercourse with his fourteen year old daughter, the evidence fairly proves. They were alone in the house. Did she consent voluntarily, or did she yield through fear of her father, or to superior force? If she yielded on account of either of. the latter causes, the defendant was guilty, without reference to his ulterior intention in the event of resistance by her. The charge -was properly refused, in any view we may take of it.

Affirmed.