Hardy v. State , 37 Tex. Crim. 55 ( 1897 )

DAVIDSON, Judge.

Appellant was convicted of rape upon Florence Williams, a girl under the age of 15 years, and his punishment assessed at death; hence, this appeal. It appears from the statement of facts that the girl was living with her grandmother in the city of Houston, Harris County. Appellant also lived in Houston. On or about the 7th of March, 1896, by force or persuasion, he induced the girl to leave her grandmother, and go with him to Victoria County. When he reached that county he claimed that the girl was his daughter. This statement was repeatedly made, not only in Victoria County, but also in Goliad County, where he carried the girl, and remained for a while. He slept with the girl, and had carnal intercourse with her a great many times. . This is not denied, but conceded by the appellant. At the time of the carnal intercourse in Victoria County, the girl was a few months over 10 years of age. There is' no question raised in this record as to the age of the girl. It is not disputed anywhere in the record that appellant repeatedly had intercourse with her. The only questions presented for our consideration are found in objections to the charge of the court, and the refusal of the court to submit to the jury requested instructions. Appellant attempts to establish a common-law marriage with the girl, by swearing that he and the girl had agreed to live together as man and wife. Upon this is based a requested instruction to the effect that ‘ ‘any mutual agreement between the parties to be husband and wife, especially when it is followed up by cohabitation and living together as such, if proven to the satisfaction of the jury beyond a reasonable doubt, would constitute a valid and binding marriage, whether there was issued any license or not, or whether there was a celebration of the rites of matrimony by public marriage, or not. The true criterion is, did the parties agree to be man and wife, and was that agreement carried out by their actual conduct towards each other? And if you find, from the evidence, that defendant entered into such an agreement in Houston with Florence Williams, prior to his removal from that place, and prior to his having sexual intercourse with said Florence Williams, and they followed up said agreement by proceeding to live with each other as husband and wife in good faith, and did so live together until the defendant was arrested, you will acquit the defendant.” This rule of law pertaining to marriages may be correct, and in a proper case should be submitted to the jury. If there was a common-law marriage between the parties, and the girl was over 14 years of age, we are of opinion that the common-law rule should be submitted to the jury in a case in which the man is charged with raping the girl; that is, having carnal knowledge of a female under the age of 15 years. But the rule has no application to this case whatever. The girl was not 11 years of age, and could not marry .in any form, with or with out license. Our statute provides that males under 16 and females under 14 years of age shall not marry.- The court did not err in refusing to submit this requested instruction to the jury. Appellant requested the court- to charge the jury “that the burden of proof in this case rests upon the State, throughout the trial, to prove beyond a reasonable doubt that Florence Williams was not at the time she came or was taken from Houston by defendant, married to the defendant; and - unless you find, from the evidence, beyond a reasonable doubt, that the State .has made such-proof, you will acquit the defendant.” The State proved beyond any sort of doubt that Florence Williams, the prosecutrix, was not the appellaht’s wife, and the defendant himself admitted that they were not -married. All of the elements of a common-law marriage are not presented by the testimony of the appellant. He states that the girl was not married to him. They’never attempted to pass as husband and wife. We gather from his own testimony that the girl agreed.to live with him, not as his wife, but as his mistress. We think the court acted properly in refusing this charge. The jury dated their verdict. The date was incorrect, and was corrected by the court, to which appellant objected. -In this there was no error.’ We do not think it was even necessary for the court to have done this. The judgment shows when the verdict was returned into court, and that it was returned into ojien court. It was not necessary for the verdict to be dated, even. We have examined this record very carefully, and are unable to find any error. The judgment is affirmed.

[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]

Affirmed.