Ballentine v. State

I believe my brethren are in error in affirming the judgment, and therefore file reasons for my dissent.

A report of this case on a former appeal will be found in volume 52 Tex.Crim. Rep.; 107 S.W. 546. The case is practically the same on the facts as on the former appeal, except that on this appeal it is made to appear that, at the time that the State's evidence shows appellant entered the room of the prosecutrix, that her two daughters, respectively 19 and 17 years of age, were sleeping in the room. The former appeal shows that the husband was also sleeping within a few feet in an adjoining room, separated by double doors, which were open. Appellant was charged with burglary with intent to commit the crime of rape. The proof shows in this record, so far as the State's side of it is concerned, that appellant had raised the mosquito-bar over the bed of prosecutrix, and was rubbing her leg or thigh, and immediately upon her making an outcry he fled. In the opinion on former appeal this language was used: "We are further of opinion that the charge of the court is too meager, and is not sufficient in regard to the definition of force such as is necessary to constitute the crime of rape; it being charged in the indictment herein that appellant's intent in entering the house was for the purpose of committing rape by force. Aggravated assault should have been given in charge." On the trial from which this is an appeal the court did not define aggravated assault. Appellant again raises the question in this language: "The court erred in his charge to the jury in not giving the charge on aggravated assault and battery, because the evidence tended to show that the assault committed, and the only assault committed on the complainant witness, Mrs. Ida Barnett, was only an aggravated assault and battery, and if the jury believe that such was the case, then the offense alleged to have been committed would not be burglary, and the defendant would have been entitled to an acquittal." While the language in the former opinion is not as clear as it should have been, still, in the connection in which it was stated, it sufficiently called the court's attention to the question. If there was but an aggravated assault, then there could not be burglary. Article 634 of the Penal Code reads as follows: "The definition of force, as applicable to assault and battery, applies also to the crime of rape, and it must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case." In addition to this definition of force, the statute, in defining rape, says, in substance, that it must be sufficient to overcome all resistance that may be offered or imposed by the prosecutrix. The only force mentioned in the testimony was the act of placing his hand upon her thigh, and perhaps rubbing it. Immediately upon being discovered by the prosecutrix he fled. Now, what are the "other circumstances of the case?" His entry into the house at night for some purpose; the presence of the husband of the wife and two daughters, respectively 19 and 17 years of age. The jury might have believed it a fair deduction from the facts that he did not intend to use force to overcome all resistance in the immediate presence of the husband of the prosecutrix and her two grown daughters; at least, it might suggest a very serious question, that of his intent to use such force as to overcome her resistance under those circumstances. Now, can it be said, to the exclusion of the reasonable doubt, that this assault would arise to the dignity of an assault to commit rape by force; that is, to force a woman under the environments of the case to submit to his desires in contravention of her resistance? In order to make it a burglary with intent to commit rape, the entry into the house must have been with the specific intent to commit rape by force. This is true by the statute and all the authorities construing that statute. Sirmons v. State, 44 Tex.Crim. Rep.; Graybill v. State, 41 Tex.Crim. Rep., and Hancock v. State, 47 S.W. Rep., 465. And at this point it may be stated, as the settled law, that it is essential that a specific intent to rape be established by the evidence, and that it must go beyond the possibility of such intent. Cotton v. State, 52 Tex. Crim. 55; 105 S.W. Rep., 185, and authorities there collated. If appellant entered the house for the purpose of having intercourse with the prosecutrix with her consent, then the crime of rape was not a part of this case, nor could the assault under such circumstances be one with the specific intent to commit the crime of rape. Under the circumstances, and owing to the fact that prosecutrix and her family were white people, and this was a negro entering the house under such circumstances, the court should have carefully guarded the case. I am of opinion that the error in refusing to instruct the jury that, if the assault was not of a higher magnitude than aggravated assault, then the crime of burglary would not result, was of such importance that it was error on his part not to so instruct the jury. In other words, the jury should have been informed that, if appellant's intent in entering the house and in taking liberties with the prosecutrix was for the purpose of having intercourse with her consent, then the crime of rape or intent to commit rape would not be shown, and the assault would be no higher than aggravated assault, and the entry into the house therefore would not be burglary. In order to constitute burglary under this case the entry must have been with the specific intent to commit the crime of rape by force; that is, by such force as would overcome all resistance on her part. This is the plain language of the statute, and therefore the criterion of such crime. I therefore think the error was of such importance as to require a reversal of the judgment.