Fields v. State , 39 Tex. Crim. 488 ( 1898 )

Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.

Appellant made a motion in arrest of judgment, on the ground that the first count in the indictment, the one on which appellant was convicted, did not charge any offense. The charging part of said indictment is as follows: That defendant, "W.S. Fields, in and upon Alice Requardt, a female then and there under the age of fifteen years, did make an assault, and the said W.S. Fields did then and there ravish and have carnal of the said Alice Requardt, the said Alice Requardt not being then and there the wife of the said W.S. Fields," — the ground of objection being that the indictment failed to charge carnal knowledge, the word "knowledge" being left out in that connection; and it is insisted that the word "ravish" does not supply this defect. The language of our statute, in defining rape, uses the terms "carnal knowledge," and does not use the term ravish;" and we can not hold this indictment good if the word "ravish" does not mean carnal knowledge. At common law the term or word "ravish" is essential in every indictment for rape; and it appears to include the idea that the party charged, forcibly and against the will of the woman, had carnal knowledge of the female. See Harman v. Com., 12 Serg. R., 69. The learned judge in that case cites the definitions of the term "ravish" by Lord Hale, Hawkins, and Chitty, which support the view above announced, to wit, that the word "ravish" is equivalent in meaning to carnal knowledge of the woman against her will and consent. For a further definition of the term "ravish," see Harper v. Delp, 3 Ind. 225; O'Connell v. State,6 Minn. 279 (Gil., 190); and Century Dictionary. This same view appears to prevail in this State. See Davis v State, 42 Tex. 226 [42 Tex. 226]; Elschlep v. State, 11 Texas Crim. App., 301; Gibson v. State, 17 Texas Crim. App., 574. Evidently, the pleader in this case, from negligence, left off the word "knowledge" after the word "carnal." But we hold that this was immaterial, in view of the fact that the indictment contains the distinct allegation that the said W.S. Fields did then and there ravish the said Alice Requardt, which is equivalent to saying that he had carnal knowledge of her without her consent.

Appellant objects to the charge of the court, because it contained the definition of "force" and also of "threats," insisting that these definitions were unnecessary and misleading, because the indictment alleged that the prosecutrix was under 15 years of age, and that force and threats under such circumstances were immaterial. The statute says that the assault can be made upon a female under 15 years of age, with or without her consent, and with or without the use of force. An assault is alleged in the indictment; and, when we recur to the proof in the case, there is no suggestion of consent on the part of the prosecutrix. She appears to have been asleep, and appellant awoke her in the act of copulation. About the time he penetrated her person, she discovered that it was not her husband, and flung him from her. Now, notwithstanding the indictment does not charge the use of force, except as above stated by means of an assault, yet, in our opinion, it does not follow that the court erred in giving a charge on the use of force. The indictment is good for rape on a woman under age, without the use of force; and proof of force would merely be a part of the res gestae of the offense. Furthermore, we would observe that the jury assessed the lowest punishment; and the charge of the court with regard to the use of force did not serve to aggravate the offense in the minds of the jury. Nor can it be said that such charge tended to secure a conviction, because, on a review of the testimony, the State's testimony shows, without question, the commission of the offense, and this is not gainsaid by any evidence on the part of the appellant.

Appellant proposed to prove by the witness Fritz Requardt, the husband of the prosecutrix, that he was married and had a living wife at the time he married the said Alice Requardt; and he states that this testimony was offered for the purpose of affecting the credibility of the witness Fritz Requardt, and of showing that he was knowingly guilty of a felony, to wit, bigamy, when he entered into the marriage relationship with the prosecutrix. We have held that proof of a legal accusation of felony or of a misdemeanor involving moral turpitude could be introduced to discredit or impeach a witness, but testimony of the character here offered is not admissible. Appellant proposed to go into the particulars of an alleged offense that had never found its way into any court. The judge did not err in rejecting this testimony.

Appellant, in his motion for a new trial, sets up, as a ground for a new trial, newly discovered evidence, He alleges that Fritz Requardt, when on the stand, swore that his wife was under 15 years of age at the time he married her, and that he had never made an affidavit that she was over 18 years of age for the purpose of procuring a marriage license. Appellant says that he has discovered since, from a certificate from the county clerk of Coryell County, that Fritz Requardt did make an affidavit before him that the prosecutrix was over the age of 18 years at the time he procured a license to marry her. In the application for a new trial on this ground, certain affidavits are referred to, but they do not appear in the record. So we can not consider this ground. Furthermore, we would state that the testimony is merely of an impeaching character. A new trial is not ordinarily granted for this character of evidence. We find no error in the record, and the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for a rehearing was overruled, at the Tyler branch without a written opinion. — Reporter.]