Serio v. State , 22 Tex. Ct. App. 633 ( 1887 )

Hurt, Judge.

This is a conviction for rape, with the death penalty assessed. The indictment contains two counts:

I. " That defendant had carnal knowledge of a female under the age of ten years.

II. That the said Genaro Serio did feloniously and unlawfully make an assault in and upon said Concepcion,'alias “Chona,” Olivera, and did then and there, by means of said assault, and by force, threats and fraud, and without the consent of the said Concepcion Olivera, alias “Chona” Olivera, then and there rape and ravish, and have carnal knowledge of, the said Concepcion Olivera, alias “Chona” Olivera, she, the said Concepcion, alias “Chona” Olivera, being then and there a woman.

Upon the trial a nolle prosequi was entered upon the first count, and hence the appellant was tried alone upon the second count.

The record furnishes not the slightest fact or circumstance tending to show that the rape was accomplished by threats or fraud. The court, however, charged the jury as follows:

I. “"You are instructed that rape is the carnal knowledge of a woman, without her consent, obtained by force, threats or fraud, or the carnal knowledge of a female under the age of ten years, with or without consent, and with or without the use of force, threats or fraud."

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6‘III. The threats must be such as might reasonably create a just fear of death, or great bodily harm, in view of the relative condition of the parties, as to-health, strength, and all other circumstances of the case.

ct jy_ The fraud must consist in the use of some stratagem by which the woman is induced to believe that the offender is her husband, or in administering without her knowledge or consent some substance producing unnatural sexual desire, or such stupor as prevents or weakens resistance, and committing the offense while she is under the influence of such substance. It is a presumption of law, which can not be rebutted by testimony, that no consent was given, under the circumstances in this paragraph of the charge.”

Appellant at the time excepted to the whole charge, first, upon the grounds that it did not contain the law of the case; and, second, that it was calculated to mislead and confuse the jury. That part of the charge relating to rape upon a female under the age of ten years was indirectly, if not directly, called to the attention of the court. This appears from the exception reserved at the time.

It is the duty of the court to submit to the jury, by proper instructions, the law applicable to the very case. What, therefore, is this case? It is that charged in the indictment and supported by evidence. The appellant was tried upon the second count, the first count having been eliminated by a nolle prosequi, so far as the trial was concerned. The appellant being tried upon the second count alone, the State must be held to show that the carnal knowledge was obtained by force, threats or fraud; and this even though the proof might show that the female, at the time of the commission of the offense, was under the age of ten years. This is evident, for with the elimination of the first count disappears from the indictment every allegation that the female was under the age of ten years. It follows, therefore, that the portion of the charge relating to rape upon & female under the age of ten years was not the law applicable to the case upon trial.

Again: The case, as below stated, is that which is properly alleged, and which is supported by evidence. The second count alleges a rape by force, threats and fraud. If, therefore, the State could show that the carnal knowledge was had by either of the means alleged, alone, or by the first two (to wit: force and threats') combined, a conviction would be proper, since all these means are charged. If the evidence tended to show a rape consummated by force and threats, it would become the duty of the trial judge to submit to the jury the law applicable to both phases of the case. Similarly with regard to rape by fraud. But notwithstanding all the means contained in the code are charged, viz: force, threats and fraud, still the case would be that which has evidence to support it, and to the case as made the charge should be confined.

In the case under consideration there is no evidence tending to support a rape by threats or fraud; hence the charge should have been restricted to a case in which force alone was used. The court should have treated the case just as though the indictment contained no allegation of threats or fraud; thus pointedly directing the minds of the jury to the case made by the testimony.

Again: The whole charge being excepted to, because being calculated to mislead and confuse the jury, we must look to all its parts to determine whether or not the exceptions were well taken. Looking, then, to the charge as a whole, our attention is drawn to the following: “ Penetration only is necessary to be found upon a trial for rape.” The proposition is correct, if presented to the jury in such a manner as not to mislead. As presented in the charge complained of, it may have had the effect to induce the jury to believe that all that was necessary upon a trial for rape was to prove the fact of penetration. The jury should havq been instructed that, to have carnal knowledge of the woman it was not required to prove an emission; that, if the evidence showed a penetration of the male parts of the defendant into the female parts of the woman, this would be sufficient. We are not attempting to give a precedent for a charge upon this offense, but we are endeavoring to show that the charge as given, being unconnected with the subject of sexual intercourse between the parties, may have misled the jury to the injury of the appellant.

We are of the opinion that the court erred in referring to rape upon a female under the age of ten years; in the charge relating to a rape committed by threats; in the charge which relates to a rape by fraud, and in the charge upon the subject of penetration. The second and third errors were not made in defining the offense of rape simply, but were carried into that part of the charge (the fifth paragraph) which seeks to make a direct application of the law to the facts of the case.

Opinion delivered January 8, 1887.

This being the case, we are of opinion that, taking the charge as a whole, the errors therein contained were calculated to injure the rights of the defendant.

The judgment is reversed and the cause remanded.

Reversed and remanded.