Arnett v. State

• Decision Date: 27 January 1926
• Docket Number: (No. 9303.)
• Citation: 286 S.W. 989
• Parties: ARNETT v. STATE.
• Court: Texas Court of Criminal Appeals

286 S.W. 989

ARNETT v. STATE.

(No. 9303.)

Court of Criminal Appeals of Texas.

January 27, 1926.

Rehearing Denied October 6, 1926.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Carter Arnett was convicted of rape, and he appeals. Affirmed.

W. H. Bledsoe and Lockhart & Garrard, all of Lubbock, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

LATTIMORE, J.

This is an appeal from a conviction in the district court of Lubbock county for rape, with punishment fixed at five years in the penitentiary.

The indictment contained two counts, one charging rape on a female under the age of consent; the other rape by force, threats, and fraud. The court submitted both offenses, and the jury returned a general verdict of guilty, giving to the accused the lowest penalty for said offense. This court has held in many cases that if there be two counts and both are submitted and a general verdict is returned the judgment will be upheld. English v. State, 29 Tex. App. 174, 15 S. W. 649; Boren v. State, 23 Tex. App. 28, 4 S. W. 463; Southern v. State, 34 Tex. Cr. R. 144, 29 S. W. 780, 53 Am. St. Rep. 702; Isaacs v. State, 36 Tex. Cr. R. 505, 38 S. W. 40; Davidson v. State, 86 Tex. Cr. R. 243, 216 S. W. 624.

There are no bills of exception in the record to the rejection or reception of any evidence. Appellant excepted in rather general terms to various parts of the charge because same did not correctly define "force," was not a correct application of the law to the facts, was confusing in that it submitted both characters of rape in the same paragraph of the court's charge, etc.

Under the evidence in this case the court might well have omitted any reference to rape by force, but inasmuch as there was but one transaction involved, and it appears without contradiction or dispute that prosecutrix was under 18 years of age, and that in such case carnal knowledge alone would suffice to sustain the charge, we are unable to see any possible injury to appellant growing out of any of the matters complained of in the charge. The girl testified positively to the fact of intercourse, and, while the evidence tends to support her claim that she did not consent thereto, the circumstances are such as that the jury may have concluded that same was with her consent. It was also without dispute that as soon as she got home from the trip on which she claimed appellant raped her she reported the matter to her father and mother, and was greatly distressed and crying. They sent for a physician, who examined her and testified that there was a rupture in her hymen that looked to be a recent one and that there was a small clot of blood. He said that the condition was one which could have been produced by carnal connection with a male person.

If the jury believed there was carnal knowledge of prosecuting witness at all — and this matter was clearly presented in the...