Mora v. State , 74 Tex. Crim. 26 ( 1914 )

Appellant has filed a motion for rehearing in this cause, in which he calls our attention to the motion made to require the State to elect upon which act of intercourse it would rely in asking for a conviction. In some way we overlooked this motion. There is no judgment in the record upon it, and it is not recited in the index to the record. The bill in the record terms it a special charge, and it is not included in the bill, but attached thereto as an exhibit, after another special charge. The record should contain the court's judgment thereon, but it does not do so, and the only way we can determine that it was called to the attention of the trial judge, is that, at the bottom of it it is marked "refused." In prosecutions for rape on a girl under fifteen years of age, where the parties stand in relationship to each that these parties did, all acts are admissible in evidence. Battles v. State, 63 Tex.Crim. Rep., 140 S.W. Rep., 783. But as we said in that case: "The State at the conclusion of the testimony should be required to elect upon which specific act it would rely for a conviction, and the court in his charge, properly limit the application of the testimony as to other acts of intercourse, acts of intimacy, etc. This is the rule as we understand it in other criminal offenses, and we see no reason why it should be different in the case of rape of a child."

Appellant having timely filed his motion to require the State to elect, the court should have sustained that motion and erred in not doing so. Bader v. State, 57 Tex.Crim. Rep.; Powell v. State, 47 Tex.Crim. Rep.; Stone v. State,45 Tex. Crim. 91; Batchelor v. State, 41 Tex.Crim. Rep.. And the error in not doing so is emphasized in the charge of the court. All acts were shown to have taken place during the previous year, and after overruling the motion and refusing to require the State to elect, the court instructed the jury to find appellant guilty, if they found he was guilty of an act of intercourse with the girl "at any time within one year before the 14th of November, 1913," thus authorizing a conviction on any one of the four acts testified to by the witness.

Motion for rehearing is granted, and the judgment of affirmance is now set aside, and the judgment of conviction is reversed and the cause remanded.

Reversed and remanded.