Brown v. State

• Decision Date: 09 March 1889
• Parties: BROWN <I>v.</I> STATE.
• Court: Texas Court of Appeals

11 S.W. 412

BROWN

v. STATE.

Court of Appeals of Texas.

March 9, 1889.

Appeal from district court, Galveston county; C L. CLEVELAND, Judge.

W. L. Wilson, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This conviction was for an assault with intent to rape. As presented by the facts, an issue in the case was the intention of the appellant. Did he intend to have carnal knowledge of Katie Ford by force or with her consent? The indictment alleges that the assault to rape was by force, threats, and fraud. Threats and fraud are eliminated from the case, because there was no proof of either. The state's case, then, is an assault with intent to rape by force, and to warrant conviction the evidence must show force, and this force must be of a certain character, viz.: "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." Pen. Code, art. 529. This article constitutes a part of the definition of "rape" or "assault to rape," when force is relied on for conviction. Make this provision a component part of article 528 of the Penal Code, and we would have this definition of "rape:" "Rape" is the carnal knowledge of a woman, without her consent, obtained by such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties, and the other circumstances of the case. An assault with intent to commit rape is constituted by an assault, or an assault and battery, with intent to have carnal knowledge of the female by the use of such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties, and other circumstances of the case. To be guilty of this offense the accused must have intended to accomplish his purpose by the use of this character of force. This proposition is absolutely correct, for, if his intention falls short of this, it would be impossible for him to be guilty of an assault with intent to rape; because we have seen (threats and fraud not being in the case) that, to constitute rape, such force must be actually used. Therefore the conclusion is inevitable that, to be guilty of an assault with intent to rape, the accused must have intended to use such force; it being impossible for him to intend to rape, without intending to do that which constitutes rape. These propositions are self-evident, demonstrating their inherent infallibility.

The authorities are harmonious on this question. Says Mr. Bishop: "An attempt is committed only when there is a specific intent to do a particular criminal thing, which intent imparts a special culpability to the act performed towards the doing. It cannot be founded on mere general malevolence. When we say a man attempted to do a thing, we mean that he intended to do specifically it, and proceeded a certain way in the doing. The intent in the mind covers the thing in full; the act covers it only in part." 1 Bish. Crim. Law, § 729. In section 731 the same author says: "The offender's purpose must be to commit an entire substantive crime; as, if the alleged offense is an assault with intent to commit rape, he must, to be guilty, have meant to use force, should it be necessary to overcome the woman's will." And again, in section 745, Mr. Bishop says: "`There must,' in the words of COCKBURN, C. J., `be an attempt which, if successful, constitutes the full offense.'" There can be no doubt of the soundness of this doctrine. We have seen that in law a man does not intend to commit a particular offense, if the act he intends would not, when fully performed, constitutes such offense. The conclusion from all the authorities is that nothing short of the specific intent to commit the substantive offense will answer. And in rape, and in assault with intent to commit rape, the party cannot be said to intend to commit the substantive offense unless he uses or intends to use all such force as is necessary to overcome all resistance; and unless the jury are so charged, the charge will fail to inform them as to what is requisite to constitute the substantive crime.

In rape, under the circumstances, all resistance must be overcome. In assault to rape, the accused must intend to overcome all resistance. And in passing upon the question as to...