Cox v. State

• Decision Date: 02 February 1898
• Parties: COX v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W. 157

COX v. STATE.

Court of Criminal Appeals of Texas.

February 2, 1898.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

James Cox was convicted of an assault with intent to rape, and he appeals. Reversed.

R. M. Clark, for appellant. Mann Trice, for the State.

HURT, P. J.

Conviction for an assault with intent to rape. The first assignment pertains to the testimony of Squire England. Over the objections of the appellant the state was permitted to prove by England a detailed account of the supposed assault with intent to rape, as related to him by the prosecutrix. The rule is that, as original testimony, the fact can only be proved that the prosecutrix complained of the outrage, but the witness cannot go into the details thereof. See Reddick v. State, 35 Tex. Cr. R. 463, 34 S. W. 274. The testimony of this witness was introduced in rebuttal, the defendant having proved by Will Cox that the prosecutrix had made statements to him prior to the trial to the effect that it was not true that her father had ever raped, or attempted to rape, her. The evidence of England, under this state of case, was clearly admissible for the purpose of sustaining the testimony of the prosecutrix.

The court instructed the jury that "if they believed from the evidence, beyond a reasonable doubt, that in Dallas county, Texas, at any time within one year next prior to March 13, 1897, the defendant did, by force or threats, or by force and threats, make an assault in and upon the person of one Martha Cox, and that such assault was then and there made," etc. This charge was excepted to by defendant at the time. An assault cannot be made by threats. In fact, no threats were shown in this case. Where force is used, threats accompanying it, they may be looked to in determining the character of the force; but, as before stated, an assault by threats cannot be made. The court committed an error in giving this charge to the jury, which was calculated to injure the rights of the accused.

The following bill of exception appears in the record: "Be it remembered that on the trial of the above cause, after the jury had retired to consider of their verdict, and had been out for some time, they sent in the following written question: `Your Honor: Is the uncorroborated evidence of the plaintiff [meaning the prosecutrix] in this case legally sufficient to convict? The prosecution, as I understood, said, "Yes," and the defendant "No." Juror M. B. Flanagan. Respectfully submitted for the decision of his honor. B. D. Atwell, Foreman.' The court gave the following answer, and made it a part of his charge: `Gentlemen of the Jury: As a matter of law, the uncorroborated testimony of a prosecutrix in a case of assault with intent to rape is sufficient to convict. C. F. Clint, Judge.' And the defendant at the time excepted to said action of the court, upon the ground that, as it was a direct answer to said question asked by the jury, they construed it to mean that the prosecutrix's testimony in this case was sufficient to convict, without corroboration; and was, in effect, a charge upon the weight of the evidence, and was very injurious to the defendant, and no doubt caused them to give undue weight to the testimony of the prosecutrix," etc. We have found no authority holding, "as a matter of law, that the uncorroborated testimony of a prosecutrix in a case of assault with intent to rape is sufficient to convict." This is a question for the jury to decide,...