Hewitt v. State

Hurt, Judge.

This conviction was for an assault with intent to rape.

The ■ charging part of the indictment is that the defendant Hewitt, “ with force and arms * ' * * did then and there, in and upon the body of Ellen Bauckmann, * * * an assault make, and her, the said Ellen Bauckmann, then and there did wound and iiltreat, with the intent then and there the said Ellen Bauckmann, against her will and without her consent, then and there feloniously to rape and carnally know.”

Opinion delivered November 14, 1883.

This indictment is defective in this, that it fails to describe the offense, to-wit, rape, intended to be committed. The use of the word “ rape ” is not sufficient; all of the elements of the intended offense must be charged.

Rape is the carnal knowledge of a woman without her com sent, obtained by force, threats, or fraudj hence the indictment must allege that the assault was made with the intent to have carnal knowledge of the party assaulted, without or against her consent, with or by force, threats, or fraud. The intended means to effect the rape must be charged. This is not done in the indictment before us. (The State v. Williams, 41 Texas, 98.)

In Davis v. The State, it is held that by the charge “did ravish,” force and violence by the man, and want of consent by the woman, are implied; but it has never been held, to our knowledge, that these implications or inferences could be made from the charge that defendant “ did-rape,” etc. (Davis v. The State, 42 Texas, 220.)

Rape being the conclusion of law from the allegation of all of the constituent acts, to allege an assault with intent to. rape, or that defendant did rape, without setting .forth all of the elements of the offense, would be simply to charge that defendant committed a certain named offense.

Again, if the intended means to be used, or resorted to, by a party to accomplish the rape can be omitted, any or all of the other acts or elements may be; and the conclusion would be inevitable that an indictment simply charging rape, or an assault with intent to rape, would be sufficient.

We are of the opinion that the indictment is defective, and that the judgment must be reversed and the prosecution dismissed.

Reversed and dismissed.