Pefferling v. State

Citation40 Tex. 486
PartiesED. PEFFERLING v. THE STATE.
Decision Date01 January 1874
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

1. In a prosecution for rape, the character of the prosecutrix for chastity may be impeached by general evidence of her reputation, and not by evidence of particular instances of unchastity; nor can she be interrogated as to a criminal connection with any other person except as to her previous intercourse with the prisoner himself; nor is such evidence of other instances admissible.

2. While recent complaints by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged injury, may be proven as original evidence, it is error to admit as such the particulars of the complaint and the detailed statements of the injured party. Such testimony is limited to the purpose of supporting the veracity and accuracy of the prosecuting witness, if attacked.

3. See facts held insufficient to justify a charge alone upon the offense of rape, omitting the distinctions between such crime and the minor offenses included in the indictment.

4. In all cases of felony it is the duty of the court, whether asked or not, to give a written charge distinctly setting forth the law applicable to the case as made by the indictment and facts.

5. To constitute an assault with intent to commit rape, there must be an intent, where force is used, to accomplish thereby the carnal knowledge of the woman by such force and against her consent.

6. See this case for discussion of the offenses included under the charge of assault with intent to commit rape.

APPEAL from Bexar. Tried below before the Hon. George H. Noonan.

Pefferling was indicted for an assault with intent to commit a rape upon one Mary Zinck.

The prosecuting witness testified, in substance, that one Sunday, in San Antonia, about 4 o'clock in the afternoon, defendant, a hackdriver, accosted her on the streets, and offered to take her home; he said he was passing that way to the San Pedro Springs; witness said she had no money, but defendant said as he was going by her father's he would not charge her. She entered the hack, and at once the defendant drove rapidly off, and soon she noticed that he was not going in the direction of her father's; when she remonstrated and asked him to stop and let her get out, defendant assured her that he would take her home by the nearest route. This he did not do, but drove out of the city and into mesquit bushes or chaparral; stopped his hack; witness got out; defendant pursued and caught her, threw his arms around her, etc.; struggling, her hat fell off, and the horses in the hack started; defendant desisted and caught the horses; in the interval witness ran; defendant pursued in the hack, trying to drive her down; she escaped by running behind mesquit bushes from time to time; she met a Mexican woman, by whose aid she got home; she made a statement of the affair to her brother and father.

The brother, as witness for the state, detailed the account as given by herself, over objection of the defendant.

On the cross-examination of the prosecuting witness, the defendant asked her, “Did you not, either in the month of July or August, 1873, drive in defendant's hack with one M. Neuendorff, after dark, to the same place where the alleged assault took place?” To this the district attorney objected, and defendant stated his object, and that he intended by said question to lay the predicate for proof that the character of the prosecutrix as to chastity was bad, and that on certain particular occasions she had had connection with other men. The objection to the question was sustained, and the testimony excluded.

The court in the charge gave the statutory definition of “assault,” and ““assault and battery,” and of “rape,” and proceeded:

“6. If you believe from the evidence that defendant made an assault upon Mary Zinck, and that said assault was committed with the intent to commit a rape, as charged in the indictment, you will find the defendant guilty. * * *

7. All persons are entitled to equal protection before the law; and it matters not what may have been the previous character of the woman, she cannot be assaulted with impunity; and where the law does not discriminate, you as a jury cannot; hence an assault upon any woman with the intent to commit a rape is a crime, and the person making the assault is amenable to the law.”

The jury found the defendant guilty, and fixed his punishment at two years in the penitentiary. Motion for new trial was overruled, and defendant appealed.

Errors assigned are as follows:

“1. Refusal of the court to allow defendant to prove the general character of the prosecutrix.

2. The court erred in proclaiming at the trial, in the presence of the jury, that the character of the prosecutrix for chastity could not be impeached.

3. The court erred in refusing the defendant to ask the prosecutrix, in cross-examination, whether she had not on a previous occasion gone with one Neuendorff, after dark, and in defendant's hack, to the same place where the alleged assault took place.

4. In permitting her brother to detail in full, in behalf of the state, in his examination-in-chief, the account given by the prosecutrix of the affair on the night of the alleged assault.

5. In giving the charge No. 7 (as above set forth), thereby excluding from the consideration of the jury the character and previous condition of the prosecutrix,” etc.

“6. In not charging the different grades of the offense, and in not charging the jury that they might convict for a less offense.”

Robinson, Altgelt & Portis, for appellant, cited Whart. Cr. Law, secs. 1149, 1150, 1151, 1152; 1 Russell, Crime, 688, 689; Pas. Dig. arts. 2156, 2160; Simonton v. Forester, 35 Tex. 584;Harten v. Courtade, Id. 434.

Geo. Clark, Attorney General, for the state, cited Jones v. Jones, 13 Tex. 176.

MOORE, ASSOCIATE JUSTICE.

Unquestionably, in trials for rape, or assaults with intent to commit rape, the character for chastity of the female alleged to have been injured may be impeached, not as evidence of justification or excuse for the offense, but for the purpose of raising the presumption that she yielded her assent, and was not in fact forced. And this presumption, it is said, will be stronger or weaker according to the degree of prostitution or degradation established by the evidence. If, therefore, the record showed that the court had ruled as alleged in the first, second, and first paragraph of the fifth assignments of errors, the judgment should, beyond doubt, be reversed. But it is by no means clear that any such ruling as complained of in these assignments was made. Certainly the instructions given to the jury are not, in this particular, justly subject to criticism or objection. The obvious import and purpose of that portion of the charge referred to in the fifth assignment of errors was to instruct the jury that the character of the female assaulted, however base or infamous, was neither a justification of the offense charged nor a bar to its prosecution. If there was any such ruling as complained of, the only evidence of it in the record is contained in appellant's first bill of exceptions, and we must infer it, not from the ruling sustaining the objection to the question set forth in the bill, but from the new reasons given in the bill why appellant desired to propound the particular question, to which the objection by appellee was sustained by the court. But as the question propounded in no way tends to put in issue the character of the witness to whom it was addressed, and as unquestionably no predicate need be laid for the introduction of general testimony impeaching the character of the female charged to be injured, it is by no means clear that...

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    • United States
    • United States State Supreme Court of North Dakota
    • May 19, 1913
    ...H. 89, 80 Am. Dec. 132;State v. Knapp, 45 N. H. 148;State v. Campbell, 20 Nev. 122, 17 Pac. 620;McCombs v. State, 8 Ohio St. 643;Pefferling v. State, 40 Tex. 486;Dorsey v. State, 1 Tex. App. 33;Rogers v. State, 1 Tex. App. 187;Jenkins v. State, 1 Tex. App. 346;Mayo v. State, 7 Tex. App. 342......
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