King v. State , 22 Tex. Ct. App. 650 ( 1887 )

Willson, Judge.

In explaining to the jury the law of rape accomplished or attempted by fraud, the court in its charge uses the following language: “Fraud must consist in the use of some stratagem, as an attempt to have carnal connection with a woman when she is asleep.” In this case, if the defendant committed burglary with the intent to commit the offense of rape, it is clear that he did not intend to accomplish the rape by either force or threats, for neither of these means were used or attempted to be used by him.

The evidence is that he assaulted the woman when she was asleep, and while she was in that condition attempted to have carnal connection with her, but when she awoke he desisted from any further effort to gratify his lust upon her. It was the opinion of the learned trial judge, as expressed in his charge to the jury, that an attempt to have carnal knowledge of a woman when she is asleep per se constitutes fraud, within the meaning of the statute upon thip subject. In this opinion we think the trial judge erred. The statute declares that the “fraud” must consist in the use of some stratagem by which the woman is induced to believe that the offender is her husband,” etc. (Penal Code, Art. 531.) It no where declares that it is “fraud” to have, or to attempt to have, carnal knowledge with a woman when she is asleep, and, as the word “fraud” used in this statute is specifically defined therein, we must be limited, in ascertaining the meaning of the word, to its statutory definition.

Opinion delivered January 12, 1887.

If a man should have, or attempt to have, carnal knowledge of a married woman while she was asleep, under such circumstances as induced her to believe he was her husband, it would be such fraud as the statute contemplates. Thus, if he should represent himself as her husband, and induce her to believe that he was her husband, and then, while she was asleep, or even while she was- awake, have or attempt to have carnal knowledge of her, it would be fraud within the meaning of the statute. But the single fact that the woman was asleep when the act of carnal knowledge was committed, or attempted, does not constitute fraud. The woman must be married, and the stratagem used to have carnal knowledge of her must be such as induces her to believe that the offender is her husband. This portion of the statute concerning the use of stratagem protects married women only. In the case we are considering, there is no evidence that the woman assaulted was a married .woman.

We are of the opinion that the charge of the court defining fraud is manifestly and materially erroneous, and that this error produced the conviction of the defendant. Wherefore the judgment is reversed and the cause is remanded.

Reversed and remanded.