Cooper v. State

• Decision Date: 27 November 1886
• Citation: 3 S.W. 334
• Parties: COOPER <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 334

COOPER

v. STATE.¹

Court of Appeals of Texas.

November 27, 1886.

Appeal from district court, Erath county.

The death penalty was assessed against the appellant upon his conviction for the rape of his own daughter, S. L. Cooper, in Erath county, Texas, on the fifteenth day of July, 1885.

The evidence of the prosecutrix, sufficiently corroborated, states the case of the state. She testified that the defendant and his wife, the witness' step-mother, the witness, and her infant brother arrived in the town of Stephenville on the evening of July 15, 1885. They took up their quarters in an old unoccupied log-house of three rooms, and retired early on that night, defendant and his wife sleeping on one pallet on the floor of the room, and witness and her brother upon another pallet spread in the same room. During the night the witness was awakened by the defendant, who compelled her to submit to his carnal passion. Witness wept, and pleaded with the defendant to desist, but by main force he exposed her person, and penetrated her sexual organ with his male member, threatening to kill witness if she cried out, resisted, or subsequently reported the outrage to any one. Physicians testified for the state that an examination of the person of the alleged injured party, made several days after the alleged rape, disclosed that her sexual organ had been penetrated by the private organ of a man. The testimony for the defense went to show that the injured party, for some time prior to the alleged rape, traveled over the country in the sole care of her step-mother, soliciting alms under fraudulent pretenses of various kinds, and had ample opportunity of lewdly associating with men, and by such lewd association to receive the injuries in her parts testified to for the state.

J P. Groome and M. V. La Baume, for appellant, maintaining the converse to the rulings of this court. The Assistant Attorney General, for the State.

WILLSON, J.

1. The indictment charges rape accomplished by force and threats, and is in the usual form. Willson, Crim. Forms, No. 374, p. 167, and cases there cited. It has never been held necessary that an indictment for this offense should allege the character of the force, or specify the threats used. It is sufficient to allege, in general terms, that the rape was accomplished by force or by threats or by fraud, or by all these means together.

2. There is in the record a bill of exception to the action of the court overruling an application made by defendant for a continuance. There is not, however, any such application in the record, and, not having the application before us, we are unable to revise this action of the court, as the bill of exceptions to the ruling upon the same does not disclose sufficient facts to enable us to fully understand and determine the question presented by the bill. As was said by this court in Swift v. State, 8 Tex. App. 614: "The legal presumptions are all in favor of the correctness of the ruling of the court; and we find no error in the ruling as the matter is here presented, assuming that the facts were as stated in the body of the bill of exceptions and in the explanation of the judge."

3. We are unable to perceive any error in the charge of the court. It limits the jury to a consideration of a rape by means of threats, omitting to instruct in regard to a rape by means of force. This...