Love v. State , 68 Tex. Crim. 228 ( 1912 )

Appellant was indicted for an assault upon Gladys Young, under fifteen years of age, with intent to ravish and have carnal knowledge of her, she not being his wife. He was convicted and the jury fixed the lowest penalty — two years in the penitentiary.

The testimony, without contradiction, shows that at the time of the alleged assault, May 10, 1910, appellant was a minister of the gospel and pastor of a country church a few miles distant from the residence of Gladys Young's parents and family, and had then been such pastor for about two and a half years; that he preached at said church every other Sunday during this time, and was a frequent visitor at the Young home, the Youngs being members and attendants upon his church and preaching; that on or about May 10, 1910, shortly before noon, he reached the home of the Youngs on one of his usual visits, his wife accompanying him. Gladys Young was then just a little over thirteen years of age. She was in the garden alone, gathering vegetables for dinner. Instead of going in the house, where his wife went upon their arriving at the Youngs', seeing Gladys in the garden, he went in to where she was and for a while helped her to gather the vegetables at a point in the garden where they could be seen from the residence. After completing gathering the vegetables, he asked Gladys to kiss him, which she either did or permitted him to kiss her. Then he went over to the other side of the garden, where he, when upon his knees, or on the ground, could not be seen from the residence. He called Gladys over there, and asked her to kneel down, and he then kissed her and drew her over next to him, put one arm around her the other up her dress. He was then on his knees. When he put his hand up under her dress he touched her privates, and said, "You are a sweet girl, are you not?" She did not reply. He repeated his statement or question. She then shook her head and started to leave him. He put his arm around her; she tried to jerk back, and he held her hard and fast. She jerked loose just as soon as his grip relaxed, and started to the house. He called her back to get the basket of vegetables; then she succeeded in leaving the garden, and after she got out, he said to her, "You are not going to tell, are you?" She said nothing, but shook her head; she was afraid not to. Gladys got acquainted with appellant some two and a half years before this occurrence by his being a minister, visiting their home and preaching in the neighborhood. She had been seeing him nearly every Sunday — at least every other Sunday when he came there to preach.

It seems that this assault became noised around in the community, and some of his members undertook, two or three weeks after it, to find out from him about it. Dr. McCuistion, one of his members, in two or three weeks after it occurred, interviewed him and asked him about it. He said to Dr. McCuistion, "Well, I did kiss her." McCuistion asked, "Is that all you done?" He said, "No, it ain't, I did put my hands under her clothes; why I did it I don't know. I guess the old Devil was in me." That he would not harm a hair on her head for the world. Soon after this talk Dr. McCuistion, another of his members, Mr. Butler, who was to have been present when the interview took place, but had not reached where Dr. McCuistion was at the time, then arrived and appellant reiterated substantially to Butler what he had stated to Dr. McCuistion.

Very shortly after this, appellant fled the country. The sheriff continuously hunted for him, had postals describing him distributed over all the country, and sought to arrest and have him arrested on this charge. Some five or six months afterwards, he was arrested by the officers of El Paso, Texas, placed in jail there, the sheriff of Lamar County informed of it, and then the sheriff of Lamar County went after, got him from the officers and jail in El Paso County, and took him back to Lamar County for trial.

There was other testimony introduced showing the situation of the garden and residence of the Youngs, the surroundings, and a public road lay some distance therefrom, and the obstructions between where he had Gladys when he assaulted her and the Youngs' residence. It is unnecessary to detail this testimony. It was all introduced for the purpose of showing the situation to the jury and their consideration in determining whether or not the assault was committed at the time and place charged.

The appellant did not testify. He introduced several witnesses, who proved that his reputation as a moral, law-abiding citizen was good.

The court gave a substantially correct and apt charge of the law as applied to the evidence. After stating what the indictment charged, and that the defendant plead not guilty, in separate paragraphs, he quoted in succession Article 1008 Penal Code, the first part of Article 1013, and then substintially subdivision two thereof. Then substantially subdivision 5 of Article 1022 Penal Code. Then rape of a female under fifteen years of age as defined by the statute; then he told the jury that in order to constitute carnal knowledge it is necessary that the male member of the man penetrate the female organ of generation, but it is immaterial as to the particular depth of such penetration. Then follows the 6th and 7th subdivisions of the charge, as follows:

"6. Now if you believe from the evidence beyond a reasonable doubt, that the defendant, W.H. Love, did in the County of Lamar and State of Texas, on or about the 9th day of May, 1910, commit an assault in and upon the body of Gladys Young with the specific intent then and there to have carnal knowledge of the said Gladys Young by penetrating her organ of generation with his male member, and if you further so believe that the said Gladys Young was then and there a female under the age of fifteen years and not the wife of the defendant, then you will find the defendant guilty of an assault with intent to rape and assess his punishment at confinement in the State penitentiary for any term of years not less than two, but unless you do so believe you can not convict the defendant of an assault with intent to rape.

"7. If you should find that the defendant put his hands upon, took hold of, kissed or placed his hands upon the prosecutrix in tute an assault, but should further believe that he only intended to indulge in improper fondling or familiarities of her person and not to have carnal knowledge of her, then you cannot convict him of an assault with intent to rape, but you may in such case if you find him guilty convict him of an aggravated assault and battery and if you find the defendant guilty of an aggravated assault and battery, you may assess his punishment at a fine of not less than $25 nor more than $1000, or by imprisonment in the county jail not less than one month nor more than two years, or by both such fine and imprisonment."

In the next paragraph he told them that if they should believe from the evidence that the defendant was guilty of an assault but had a reasonable doubt as to whether it was an assault with intent to rape, or an aggravated assault to give him the benefit of the doubt and not find him guilty of anything higher than an aggravated assault. Then he follows with the 9th and 9 1/2 subdivision of the charge, as follows:

"9. The mere fact, if it is a fact, that the defendant took hold of, kissed, or placed his hands upon the person of the prosecutrix, would not make him guilty of an assault with intent to commit rape, but before you can convict the defendant in this case, of an assault with intent to rape, you must believe from the evidence beyond a reasonable doubt that Gladys Young was at the time under 15 years of age and not the wife of the defendant and that the defendant took hold of, kissed or placed his hands upon the prosecutrix in such manner as to constitute an assault and at the very time intended instantly and without suspension of action and without waiting to ascertain whether or not she would consent to then and there place herself in such attitude that the final act of carnal intercourse could be performed upon her, whether the purpose was to put her in such attitude by his force alone or by her free co-operation and consent.

"9 1/2. If you should believe that the defendant took hold of, or kissed or placed his hands upon the prosecutrix, but you further believe that he did not intend at the time to have carnal knowledge of her you cannot convict him of an assault with intent to rape." The charge closed with the 10th subdivision thereof, which is subdivided into several paragraphs. By the first he told the jury that the fact that appellant has not testified shall not be taken as a circumstance against him and not to take into consideration that fact nor allude to, nor discuss it in their deliberations. Then, that in all criminal cases the burden of proof is on the State, the defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and if they have a reasonable doubt as to his guilt to acquit him, and that they are the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to their testimony.

It will be observed that by the 9th paragraph of the charge, quoted above, the court undertook to give the principle and apply it, which was specifically laid down by this court in Cromeans v. State, 59 Tex.Crim. Rep., but perhaps omitted some words therein to make it an entirely complete sentence, but when the whole paragraphs 9 and 9 1/2 of the charge are taken into consideration, it was as favorable, if not more favorable, to the appellant than the law would authorize. At any rate, even though some few words might have been inadvertently omitted by the court in paragraph 9, under Article 743 (723) Code of Criminal Procedure, no harm whatever resulted to appellant, and especially in view of the fact that by subdivisions 6 and 7 of the court's charge, the law applicable was fully, fairly and favorably submitted to the jury. Hence, none of appellant's criticisms of the charge of the court present any reversible error whatever, even if his criticisms and objections thereto are so presented that we can consider them at all.

Appellant requested several special charges. In No. 2 of them, he requests the court to charge the jury that if they believe from the facts in evidence, that the appellant did indulge in improper fondling and familiarities of the person of Gladys Young, such would not warrant them in finding him guilty of an assault with intent to rape, unless they further find, beyond a reasonable doubt, that he did then and there actually intend to have sexual intercourse with her. This much of that special charge was clearly and substantially covered by the court's charge. This special charge then further says, "and, unless you further believe, beyond a reasonable doubt, that the defendant did then and there go further and use upon Gladys Young that kind of force that was necessary to place her in the position and attitude in which the act of sexual intercourse could have been performed with her," and unless the jury so believe to find him not guilty of an assault with intent to rape. This latter part of this charge is not the law and should not have been given. Hightower v. State, 65 Tex. Crim. 323,143 S.W. 1168, and cases there cited.

Insofar as appellant's charge No. 3 is concerned, such of it as was necessary to be given, was fully and substantially covered by the charge of the court.

By appellant's bill of exception No. 1, he objected to the State proving by Dr. McCuistion that appellant was a preacher or minister of the gospel, and that the country church, where the Youngs attended and were members, was one of his appointments. The court, in allowing the bill, qualified it by explaining that this testimony was admitted to show why appellant knew the prosecutrix and the length of time, etc., "and then the court will see that other witnesses testified that he was a minister without any objection whatever." It is our opinion that this evidence was legitimate and proper under the circumstances of this case, but even if not, under the qualification of the bill by the court, which was accepted by appellant, other witnesses testified to the same thing without any objection. Hence, in any event no error was committed.

The court refused to allow appellant's second bill of exception where, it seems, he claimed he objected to the same proof by Charles Young, and also by bill No. 4 of the same question to Mrs. Young. The court stating that this question was not asked this witness, but if it had been, he gave the same reasons as in bill No. 1. As presented to us there was no error shown in this matter.

By appellant's third bill of exception it is shown that the State asked Mrs. L.E. Young, the mother of the prosecutrix, while she was on the stand, if her daughter Gladys complained to her of appellant's treatment of her. The witness answered that she did. It then developed by further examination of this witness that the appellant's assault upon Gladys was committed just before noon on Monday and that her mother stated that she complained to her about it on Thursday morning following. The court, in allowing the bill, explained and qualified thus: "The court will see that the witness never detailed any statement whatever, but simply stated the prosecutrix made complaint to her. This was admitted and the court instructed the jury not to consider this evidence in arriving at a verdict for any purpose whatever. I thought at the time it was admissible, but as it had been from Monday noon to Thursday morning I thought there might be some doubt about it and I then resolved the doubt in favor of the defendant and instructed the jury not to consider it; but even if I had not instructed the jury to disregard it, it could not be error, for the reason that the prosecutrix testified without objection as follows: ``When I returned to the house I saw my sister and told her to keep away from him, and I afterwards told my mother about it.'" As thus qualified, this bill presents no error. Miller v. State,31 Tex. Crim. 609 and cases cited therein. Besides this, it seems to us that the fact that Gladys did not complain to her mother about appellant's conduct, from Monday at noon until the following Thursday morning, would be a circumstance in appellant's favor and not against him.

By appellant's 5th bill he attempts to complain of the court permitting the sheriff, when testifying, to tell what efforts in the way of advertising and rewards offered for the arrest of the appellant after he had fled the country. The court qualified the bill in allowing it with this explanation: "that the district attorney, after he had asked the sheriff if complaint had been made, asked this question: Q. I will ask you whether or not you made any efforts to find him, if so, what efforts you made? Answer. Why, I had cards struck offering $25.00 reward for him in any jail in the U.S. Question. Did you find him anywhere in this part of the country. Defendant objects to that testimony as irrelevant and immaterial what the sheriff did, offering a reward or any of his own actions in this matter as irrelevant and immaterial and calculated to prejudice the rights of the defendant. The court overruled the objection, to which ruling of the court the defendant excepted. Question. Where did you find him? Answer. I found him in El Paso, Texas, jail. Defendant objections goes to all of that testimony, witness continues: I searched all in this county for him and I mailed and sent cards everywhere. Question. Down in the Pattonville country where he had been living I will ask you if you could find him in that part of the country, if you made search for him and kept up the search and inquiry? Answer. I did, yes sir, made diligent search for him, I found him in El Paso somewhere about the 15th of July, I forgot the date now.

"The above are the questions, answers and objections made to the testimony of this witness." This testimony, as shown by this bill, was legitimate and admissible.

By two other bills appellant complains of the argument of the State's attorneys. The bills do not show in what connection or why these attorneys made such remarks, nor give this court any such information therein as that it can determine what effect such remarks may have had. The jury fixed the lowest penalty. The court, in allowing each bill, qualified and explained it by stating that appellant's counsel did not request any instruction to be given to the jury to disregard the argument if it was improper. No reversible error is shown in either of these matters. Clayton v. State, 67 Tex.Crim. Rep., 149 S.W. Rep. 122-3, and cases therein cited.

The only other question is appellant contends that the evidence was insufficient to sustain the verdict and that the court ought to have given his peremptory charge to find the defendant not guilty of an assault with intent to rape. In our opinion the evidence was amply sufficient to sustain the verdict of the jury. See Duckett v. State, recently decided; Hightower v. State,65 Tex. Crim. 323, 143 S.W. Rep. 1168, and cases cited in this opinion.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING. (November 13, 1912.)