Porter v. State

This is a conviction for an assault with intent to commit rape. According to the testimony of the prosecutrix, she and defendant were alone in a street car, the driver having left. Defendant asked her her name and where she lived. She pretended not to hear him. When he repeated the inquiry, she was frightened, and answered. He then made an indecent proposal to her, to which she replied that she did not understand him. He immediately arose, came across to where she was sitting, took hold of her by the arms, and tried to push her down on the seat of the street car. She shoved him off, ran out of the car, ran up the track, and called to some people for protection. He followed her out of the car and followed her up the track, calling to her that, if she would come back, he would do her no harm. She is 15 years of age. Defendant is a negro boy. The court, in the charge to the jury, submitted simply the issue of assault with intent to rape; that is to say, that the jury, under the charge, must either acquit or find the accused guilty of the felonious assault. The charge does not define the character or degree of force necessary to constitute rape. The defense asked the following charges, which were refused: (1) "In order to find the prisoner guilty of an assault with intent to commit rape, you must be satisfied, beyond a reasonable doubt, that the prisoner, when be laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part." (2) "If you believe from the evidence that the defendant did assault the said Freda Mink, but you do not believe, beyond a reasonable doubt, that he, under the circumstances, and at the time and place, intended to have carnal knowledge of her at all events, and notwithstanding resistance on her part, then you will acquit defendant of the charge of assault with intent to commit rape, but you may find the defendant guilty of assault, and assess his punishment at a fine." * * * The defendant reserved a bill to the refusal to give these charges.

The requested charge number 1 was the law of this case. Rex v. Lloyd, 7 Car. P., 318; Rex v. Wright, 4 Fost. F., 967; Commonwealth v. Merrill, 14 Gray, 415; Reynolds v. The People, 41 How. Pr., 179; Jones v. The State, 53 Ga. 50; The State v. Burgdorf, 53 Mo., 65; Mahoney v. The People, 43 Mich. 39; The State v. Hagerman, 47 Ia., 151; Taylor v. The State,50 Ga. 79; Brown v. The State, 27 Texas Crim. App., 330; Shields v. The State, 32 Tex.Crim. Rep..

The requested charge number 2 was the law of this case. The testimony of the prosecutrix presented for the determination of the jury the issue whether or not the accused intended to use that degree of force we have defined; and, in the event that the jury believed that such intent did not exist, then defendant would be guilty of a simple assault, if the proof shows that he is not an adult. By comparing the facts in the present case with those in the case of Pfefferling v. The State, 40 Tex. 487, it will be found that in the latter a much stronger case was made, and we think tile opinion of Judge Moore in that case is conclusive of this.

The judgment is reversed and the cause remanded.

Reversed and demanded.

Judges all present and concurring.