Craig v. State ( 1885 )

Willson, Judge.

This appeal is from a conviction for an assault with intent to rape one Jessie Massey. The indictment charges that the said Jessie Massey was “a female person, and in stature, constitution and development a child; ” but it does not allege that she was under the age of ten years. It alleges that the rape was attempted by force, and against the will and consent of the said Jessie Massey. There was a conflict of evidence as to the age of the female, some of the testimony being that she was not ten years old, while other testimony showed that she was eleven years old.

The court charged the jury as follows: “ You are further charged that sexual intercourse with a female child under the age of ten y ears, or with a female who, by reason of her stature, constitution and development, is a child, is rape, and in such case it becomes wholly immaterial whether the same was obtained by force, threats or fraud, or whether with or without consent, and in this connection yon are charged that if you believe from the evidence beyond a reasonable doubt that defendant made an assault upon Jessie Massey with intent to have sexual intercourse with her as alleged, and you further believe from the evidence beyond a reasonable doubt that the said Jessie was under the age of ten years, or that she was, by reason of her stature, constitution and development, a child, then you should convict.”

This charge, we think, is materially erroneous. It submits to the jury an issue not presented by the indictment, that is, the age of the assaulted party. Under this indictment the defendant could not be legally tried and convicted for an assault with intent to have carnal intercourse with a female under ten years of age. He was not called upon to meet such a charge, and cannot be presumed to have been prepared with evidence to prove that the assaulted female was over the age of ten years. There is a very material difference in the essentials of the crime of rape, when perpetrated upon a child under the age of ten years, and when perpetrated upon a female over that age. In the former instance, force, fraud or threats, and want of consent, are not elements of the offense, while in the latter they are. It is not rape for a male to have carnal intercourse with a female over the age of ten years, with her consent. (Penal Code, art. 523; Anschicks v. The State, 6 Texas Ct. App., 524.) If the female be over ten years of age, her want of consent must be shown, no matter what may be her stature, constitution or development. (Baldwin v. The State, 15 Texas Ct. App., 275.) Her “ stature, constitution and development” may be shown and considered in determining the issue as to whether or not she consented, but the mere fact that in these respects she is a child does not make it rape to have carnal intercourse with her, if she be over ten years of age, and consent to such intercourse. The charge as to the stature, constitution and development of the assaulted female is not warranted by the evidence before us. There is no evidence whatever in the record showing that in these respects she was a child.

Because of the errors in the charge of the court, the judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered June 3, 1885.]