Reagan v. State , 28 Tex. Ct. App. 227 ( 1889 )

Hurt, Judge.

This is a conviction for an attempt to rape.

There are two counts in the indictment. The first charges an assault with the intent to commit rape. The second charges an attempt to commit rape. The first is sufficient for an assault with intent to commit rape. Is the second count sufficient for an attempt to rape? Counsel for appellant contends that it is not, the objection being that as this count charges that the rape was attempted alone by threats, it should have been alleged that the threats were directed against the person of the prosecutrix. This is not necessary. See definition of “rape,” Penal Code, art. 528. And further, the court must give in charge article 530 of the Penal Code, defining the threat required by the statute.

It is urged by counsel for appellant that only under an indictment for rape can the accused be convicted of an attempt to rape. We hold to the contrary. Melton v. The State, 24 Texas Ct. App., 284.

There is no duplicity in the indictment. This objection to an indictment applies when two or more distinct offenses are joined in one count. Two or more distinct offenses may, under proper circumstances, be joined in one indictment. This, however, must ordinarily be done in separate counts. In this case we have two counts—one for an assault with intent to rape, and the other for the attempt.

It appears from the record that one Felix Diaz had been in attendance upon the court at the trial term as a witness for the defendant in obedience to a subpoena until August 1. Neither the witnesses for the State nor defendant being present, an attachment was issued and executed on the 2d day of August. When the parties were called upon to announce the sheriff stated to counsel for defendant that Diaz had been attached and would be in attendance upon the court. Counsel for defendant believing this to be true announced ready for trial. Diaz did not attend, and defendant being convicted brings forward this matter as a ground for new trial, stating in the motion the facts expected to be proved by Diaz.

Conceding for the argument the materiality, of the facts, still the court did not err in refusing a new trial upon this ground, because at some time before the evidence was concluded the appellant discovered that Diaz was not present, if inffact he needed him. Now, under this state of case it was the duty of appellant to move to withdraw his announcement, and to continue or postpone the case, setting out in his motion all the facts as well as the testimony expected from Diaz. This rule of practice is well settled.

The motion for new trial relied upon testimony discovered after the trial. From an inspection of the record it clearly appears that this testimony could have been ascertained, if indeed the appellant was not aware of the facts himself. He had visited the house in company with Diaz, knew its character and its occupants, and could have procured the attendance of several witnesses who would have testified to all the facts stated in the affidavits filed in support of his motion.

There is very cogent testimony tending to show that appellant was very drunk at the time he made the attempt. The court gave in charge to the jury the statute relating to drunkenness which reads: “Neither intoxication, nor temporary insanity of mind, produced by voluntary recent use of ardent spirits, shall constitute any excuse in this State for the commission of crime, nor shall intoxication mitigate either the degree or the penalty of crime, but evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in any criminal prosecution in mitigation of the penalty attached to the offense for which he is being tried, and in cases of murder, for the purpose of determining the degree of murder of which the defendant may be found guilty.” Article 40a, Penal Code, Willson’s Crim. Stats., sec. 92.

Appellant requested the following charge: “The jury may take into consideration the evidence before them as to the drunkenness of the defendant at the time of the assault (if any was made) in determining whether the defendant had at the time the specific intent to commit the offense of rape as that offense is defined in the charge of the court.” This requested instruction was refused and the defendant excepted.

' Let us return to article 40«s. It is seen that neither insanity nor intoxication produced by the voluntary recent use of ardent spirits shall be an excuse for crime. This is the common law, and the law of common sense. Acts may be excused, but there can in the very nature of things be no excuse for crime. For if indeed appellant attempted to rape Mrs. Regian, in morals as in law, there is no excuse.

But it may be contended that the statute means that proof of insanity or intoxication so produced shall not be used to negative—disprove—the specific intent to ravish. The specific intent to rape must accompany the means used to effect the rape. The intent is an absolutely essential ingredient of the offense, without which, though the means may have been used, there can be no attempt to rape. Now then, has the Legislature eliminated this ingredient in all cases in which the defendant is temporarily insane from the use of ardent spirits—insane, or so drunk from the voluntary recent use of ardent spirits as to be incapable of forming the intent? If so, then the offense is complete without the sj)ecific intent —such insanity or drunkenness being substituted for the.intent. We will not believe this to be the intention of the Legislature until it is expressed in plain and unquestionable language.

This we deem a correct rule, and it is Avell settled that if the offense consists of an act combined with a particular intent, it is as necessary to prove the intent as to prove the act, and the intent must be found by the jury as matter of fact, before a conviction can be had. Especially is this so when the offense, consisting of the act and the intent, constitutes, as in this case, an attempt to commit a higher offense than that charged. “And as the particular intent chargecj must be proved to the satisfaction of the jury (beyond a reasonable doubt), no intent in law, nor mere legal presumption, differing from the intent in fact, will be allowed to supply the place of the latter.” Roberts v. The People, 19 Mich., 402; Rex v. Thomas, 1 East P. C., 417; 1 Leach, 330; Rex v. Holt, 7 Car. and P., 518; Cruses’s Case, 8 Car. and P., 541; Rex v. Jones, 9 Id., 258; Regina v. Ryan, 2 Mood, and R., 213; Agletree v. The State, 28 Ala., 693; Maher v. The People, 10 Mich., 212; The People v. Scott, 6 Mich., 296; Loza v. The State, 1 Texas Ct. App., 488. Our statute above quoted declares that intoxication shall be no excuse for crime, etc. If a crime has not been committed, the statute is inapplicable. No excuse is needed until a crime has been committed.

Now, as bearing upon the question as to whether the attempt was committed with the intent to ravish, it was material to inquire whether the defendant’s mental faculties were so far overcome by the effects of intoxication as to render him incapable of entertaining the intent, and for this purpose it was the right and duty of the jury to take into consideration the nature and circumstances of the attempt, the actions, conduct, and demeanor of the defendant, his declarations before, at the time of, and after the attempt, and especially to consider the nature of the attempt, and what degree of mental capacity was necessary to enable him to entertain the intent to rape.

The question we are considering relates solely to the capacity of the defendant to entertain the particular intent. / It is a question rather of the exercise of the will than of reasoning powers, and as matter of law, the jury should have been instructed that if defendant’s mental faculties were so far overcome by intoxication that he was not conscious of what, he was doing, or that if his actions and the means used were naturally-adapted or calculated to effect his purpose, still, if he had not sufficient-capacity to entertain the intent to ravish Mrs. Eegian, in that event they should not infer that intent from his acts. But if he knew what he was: doing, and why he was doing it, and his actions and the means used were: naturally adapted or calculated to effect his purpose, then the attempt to rape might be inferred from his acts in the same manner as if he were: sober.

Appellant is not to be held responsible for the intent if he was too-drunk for a conscious exercise of the will to the particular end; or, in other words, too drunk to entertain the intent, and did not entertain it in fact. If he did in fact entertain it, though but for the intoxication he would not have done so, he is responsible for the intent as well as for the acts.

We are of the opinion that the requested instructious should have been, given. The judgment is reversed and the cause remanded.

Reversed and remanded-

Judges all present and concurring.