Bass v. State , 1884 Tex. Crim. App. LEXIS 68 ( 1884 )

Hurt, Judge.

Appellant was convicted of the rape of Miss Lou Williams, an inmate of the poor farm of Lamar county, and his penalty was assessed by the jury at death. There is no assignment of errors in the record, nor brief filed for appellant in this court.

Three grounds were urged in the motion for new trial in the court below: 1. As the indictment alleged that the rape was effected by force, omitting threats, that the State was confined to this means, and could not legally prove threats made by the defendant at the time of the carnal intercourse.

On the twentieth of October, 1883, at the poor farm in Lámar county, Lou Williams, the prosecutrix, a paralyzed lady of about twenty-one years of age, was in her room in bed. Her room was the west room of a house containing two rooms, the east one of which was occupied by Mrs. Curtis. About eight o’clock at night, some person, whom she at first believed to be her aunt, came to and got on her bed. Immediately, however, on entering the bed, the party placed his hand on the mouth of Miss Williams, and began to pull up her clothes, when she began to “hollow for Mrs. Curtis,” whereupon her assailant whispered to her: “ If you hollow, I will kill you.”

The indictment having selected force as the only means by which the rape was effected, had the State the right to prove this threat, made at the time and place stated? Beyond any sort of a doubt this proof was legitimate1 First, it was res gestee. Second, it bore directly upon the question of consent. Third, it showed the intent of the assailant. And fourth, it was an important fact to be considered in passing upon the character and degree of force used by defendant to accomplish his purpose.

Article 529 of the Penal Code requires the force to be such as might reasonably be supposed to be sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case. The question is whether, in determining the sufficiency of the force, threats can be considered. In Sharp v. The State (15 Texas Ct. App., 171), decided at the last Tyler term, we held that evidence of threats was not only admissible as res gestee, but could be looked to and considered by the jury in passing upon the sufficiency of the force used. The reasons enumerated in that opinion we believe to be correct, but whether admissible for this purpose or not* evidently as res gestee, and as evidence tending to elucidate the intention of the assailant, and bearing upon the question of consent, this threat was admissible.

There is no complaint of the charge of the court upon the subject, the learned judge presiding confining the jury in his charge to force as the means used by which the rape was effected.

2. Does the evidence support the verdict? We have examined the statement of facts critically and with that earnestness demanded by the terrible penalty imposed by the jury in their verdict, and are forced to the conclusion that, if the witnesses testified the truth, the verdict is amply supported by the evidence. (The Reporter will insert the evidence.)

3. That the argument for the State was not proper. Counsel for the State made some observations to the effect that the prosecutrix, seeing defendant under such circumstances, would not be likely ever to forget his features. This was argument, and whether sound or fallacious, this court will not reverse the judgment. It is contended by the appellant that there is no evidence that the prosecutrix saw the features of defendant, and that therefore these remarks were out of the record. We believe that there is evidence tending to show that the prosecutrix saw the face of defendant; but, suppose we concede that the counsel for the State assumed a fact and commented upon such fact which was not in proof, this court would not reverse the judgment unless such conduct was very clearly calculated to prejudice the rights of defendant. To reverse in all cases in which counsel did not confine themselves to the record would render trials farces. In fact, rare would be the case in which such irregularities would not occur.

We have given to this record our most careful attention, and must say that theretis no such error, if there be any, as will authorize us in disturbing the judgment, and it is affirmed.

Affirmed,

Opinion delivered April 26, 1884.