Gibson v. State ( 1885 )

White, Presiding Judge.

Two objections are urged to the validity of the indictment, the charging part of which is as follows: “The said John Gibson, being then and there an adult' male over, the age of fourteen years, with force, threats and fraud, in and upon one Mary Johnson, alias Mary Gibson, a female then and there being, unlawfully and feloniously an assault did make with the unlawful and felonious intent, then and there, of him, the said John Gibson, without the consent and against the will u/her, the said Mary Johnson, alias Mary Gibson, to carnally know and to ravish; against the peace and dignity of the State.” The objections are, first, “It fails to charge that Mary Johnson, alias Mary Gibson, is a woman or a female under the age of ten years.” Second, “ It does not charge upon whom or what person defendant intended to commit any assault with intent to ravish, or whom he intended to ravish.”

By our statute rape is made to consist in “the carnal knowledge of a woman without her consent,” etc., “ or the carnal knowledge of a female under the a.ge of ten years” etc. (Penal Code, art. 528.) And in an assault with intent to commit rape the party to be assailed is by statute denominated “ a woman.” (Penal Code, art. 503.) How, as we understand appellant’s first objection, his proposition is that in charging a rape or assault with intent to rape it is essentially necessary to designate the assaulted party in the statutory words or manner as “ a woman,” unless she is under ten years of age, in which case the statute designates or denominates her as “a female” in contradistinction to the word “ woman; ” and that the charge in this indictment, that Mary Gibson was “ a female,” is insufficient either to charge that the assault was upon “ a woman ” or upon “ a female,” because in the latter case it should have gone farther and alleged that the assault was upon “ a female under ten years.” 1

There is no doubt but that the allegation would be wholly insufficient to charge an assault upon a female under the age of ten years, because in such a case the age is an essential allegation to notify the defendant that ho would be tried for an offense of which he could be convicted without proving either force, fraud, threats or want of consent; for neither of these are required to be alleged or proven when the offense is upon a female under ten years of age. (Penal Code, art. 528; Mayo v. The State, 7 Texas Ct. App., 342; 2 Bish. Cr. Proc, (3d ed.), § 960.) But, when used with reference to a human, being, the word “ female ” is synonymous, interchangeable with, equivalent to, and means “a woman.” (Robertson v. The State, 31 Texas, 36; Battle v. The State. 4 Texas Ct. App., 595; 2 Bish. Cr. Proc. (3d ed.), § 952; Holland v. The State, 14 Texas Ct. App., 182.) The first objection is not maintainable.

By the second objection it is insisted that the indictment fails to aver upon whom it was that defendant intended to commit the rape. In copying the indictment it will be noticed that we have italicised the words “ without the consent and without the will of” If these words can be stricken or eliminated from the charge — which may be done if they are surplusage'—then there can be no question of the accuracy or of the sufficiency of the charge. Can these words be treated as surplusage? Are they essential to the description of the crime? It will be seen that the charge, omitting and leaving out these words entirely, is that defendant “ an assault did make with the unlawful and felonious intent, then and there, of him, the said John Gibson, her, the said Mary Johnson, alias Mary Gibson, to carnally know and to ravish.” The word “ ravish ” or “ ravished ” is the essential word in all indictments for rape or for assault with intent to rape; it is indispensable. (2 Bish. Cr. Proc., § 953.) It means all that is necessary to a charge of rape, and imports not only violence on the part of the man but resistance and want of consent on the part of the woman; and where that word is used in an indictment for rape, it is but repetition to allege that the defendant carnally knew the woman forcibly and against her will. (Davis v. The State, 42 Texas, 226. And see the same question we are discussing fully discussed, and the authorities cited, in Williams v. The State, 1 Texas Ct. App., 90, and Mayo v. The State, 7 Texas Ct. App., 342.) Under those authorities it is clear that the word “ ravish,” used in the indictment before us, renders the words “ without the consent and against the will of” mere surplusage which may be disregarded as entirely unnecessary to the charge. If surplusage merely, then they should be eliminated and are not binding.

Taking this view of the question — and it is well sustained both in reason and authority — the indictment is not invalid by reason of the second objection. We hold that the indictment is-good.

There is no statement of facts in the record, and no other question than the ones discussed is raised either by bill of exception or in the brief of counsel for appellant. There being no error in the judgment of conviction, apparent on the record before us, the judgment is affirmed.

Affirmed.

[Opinion delivered February 14, 1885.]