Cromeans v. State

• Decision Date: 27 October 1909
• Citation: 129 S.W. 1129
• Parties: CROMEANS v. STATE.
• Court: Texas Court of Criminal Appeals

129 S.W. 1129

CROMEANS v. STATE.

Court of Criminal Appeals of Texas.

October 27, 1909.

Rehearing Denied December 15, 1909.

Appellant's Motion for Rehearing Granted June 15, 1910.

Appeal from District Court, Edwards County; R. H. Burney, Judge.

Ross Cromeans was convicted of assault with intent to rape, and he appeals. Reversed and remanded on rehearing.

John W. Hill and Will A. Morriss, for appellant. F. J. McCord, Asst. Gen., for the State.

BROOKS, J.

Appellant was convicted of an assault with intent to rape on a female under 15 years of age, his punishment being assessed at 2 years' confinement in the penitentiary. Appellant's main insistence in this record is that the verdict is contrary to the law and unsupported by the evidence. The testimony shows that prosecutrix was 14 years of age, and appellant 16 years of age. They lived in the country below Barksdale, and had known each other for years, having gone to school together. Prosecutrix lived farther from town than appellant. Prosecutrix had gone to town on the morning of the alleged assault, and was coming home alone on foot about 12 o'clock. The circumstances of the assault are related by her as follows: "After I left Bort's house and passed Cromeans' place and had gone through the gate near Cromeans' place, known as the Rhodes gate, and had gotten about half way from there to the Sweeten gate, which is about one mile from Ross Cromeans' house, Ross Cromeans passed me on horseback going the same way I was going. When I reached the Sweeten gate Ross Cromeans was there and had gotten off his horse and was standing at the gate kicking it. I asked him three times to get out of the way and let me pass. He then said to me: `Let me see your cock.' I told him I would not do it, and for him to let me through, and then he said: `Let me fuck you.' I said I would not, and then tried to get through, and he caught me by my hand, and I jerked loose from him, and then he caught me by my arm, and I jerked loose from him again, and ran away back down the road towards Barksdale. I did not see him any more that day. He did not follow me." Appellant denied meeting the prosecutrix at the Sweeten gate. He introduced a number of witnesses to show he did not see her at said gate, which was nearly a mile from his house, but he testified to having a conversation with her at a gate nearer his father's house in which he made an indecent proposal to her. He testified that he never did have intercourse nor attempt to have intercourse with Bertha Bradley at any time. "I have never had intercourse with any woman. I did not try to have intercourse nor expect to have intercourse with her. I just said what I did to her to see what she would say. I do not know what made me do it." Nothing further is shown to have occurred between the parties than that above detailed. In addition to the above, the statement of facts shows that appellant testified to the following: "It is not true that I accosted her or caught hold of her or made any remarks to her on the 8th day of last June at the Sweeten gate, but I just remarked to her at the Rhodes' gate that she had better give me some before she left and she got very mad, and said she would not do it and picked up a rock. I told her she need not get mad, I was not going to do anything to her, and I turned and walked away, and she started on down the road. I did not catch her by the hand nor arm; I did not touch her; and that is all I said to her." Under the authorities of this court this evidence makes out an assault with intent to rape on a child under 15 year of age. See McAvoy v. State, 41 Tex. Cr. R. 56, 51 S. W. 928; Carter v. State, 44 Tex. Cr. R. 312, 70 S. W. 971; Hudson v. State, 49 Tex. Cr. R. 24, 90 S. W. 177. The jury saw fit to believe the prosecutrix's testimony to the effect that appellant did take hold of the prosecutrix. This is an assault, the elements of consent vel non not entering into a prosecution for assault with intent to rape upon a child under 15 years of age. Appellant having the specific intent to rape, where he takes hold of the prosecutrix, makes out the offense under the authorities of this court. Appellant in his brief insists this court should review the authorities on this question anew. We have done so, and hold that the case of Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882, lays down the correct rule, which has been followed uniformly since by the majority of this court. When appellant seized hold of the prosecutrix, according to her testimony, clearly in the light of his offensive suggestion made to prosecutrix above detailed, this showed a specific intent to have carnal intercourse with prosecutrix with her consent. The charge of the court admirably presented the law applicable to the facts of this case, and in clear consonance with the decisions of this court, and there is no error in this record authorizing a reversal of this case.

The judgment is affirmed.

RAMSEY, J.

If the case of McAvoy v. State, 41 Tex. Cr. R. 56, 51 S. W. 928 (and many later cases) is to be followed, the decision in this case is correct. My own judgment is that the correct rule is laid down in the dissenting opinion in Hardin v. State, 39 Tex. Cr. R. 426, 46 S. W. 803, and in the opinion on rehearing in Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882, both by Judge Henderson. The rule laid down in the McAvoy Case has since been uniformly followed and has been treated as the settled rule of the court. It does not occur to me that it is a correct rule. I reluctantly agree to an affirmance of the judgment out of respect to the former holding of this court, and because of my indisposition to break down public confidence in the uniformity of our decisions. Besides, the rule enforced by the decision of my Brother BROOKS does make for the protection and safety of the young girls of our country.

DAVIDSON, P. J.

As Judge RAMSEY'S views affirm the judgment I do not dissent, though I am still of opinion the decision in the Hardin Case is the law.

On Motion for Rehearing.

COBB, Special Judge.

This case is before the court on a second rehearing, the judgment having been affirmed in an opinion by Judge BROOKS October 27th last, and rehearing denied without written opinion December 15th. Appellant on June 1, 1910, filed his supplemental motion for rehearing and argument, wherein the burden of contention is that the evidence is insufficient to establish the offense of assault with intent to rape. Let us see what the facts are, taking the testimony of prosecutrix to be true: She was 14 years of age August 15, 1908. On June 8th preceding that date she was walking alone from the town of Barksdale to her father's house about 2½ miles distant, and stopped at Bort's house two or three hundred yards from appellant's home. Leaving Bort's she passed Cromeans' place, and had gone about one half mile beyond it when appellant passed her, riding a horse. He had alighted and was standing at a gate through which she desired to pass when the following incident occurred: She asked him to let her pass through the gate. He said to her: "Let me see your cock." She told him she would not do it, and demanded that he let her through the gate. He then said: "Let me fuck you." She said she would not, and tried to get through the gate. He caught her hand. She jerked lose; he caught her arm; she again jerked loose, and ran back down the road towards Barksdale, and saw him no more that day. He did not follow her. Appellant's parents and three sisters and himself lived near Barksdale on a public road which runs in front of their door, and the gate mentioned by prosecutrix is about three-quarters of a mile from their residence. Appellant was 16 years old August 17, 1909.

There has been much contrariety of opinion among the judges of this court as to whether or not an assault, if it can be so called, made on a girl not 15 years old with her consent, and with the intent to obtain carnal knowledge of her person with her consent, is an assault with intent to rape, and it appears futile to undertake a reconciliation of the conflict. However, we believe it safe to lay down as law the proposition following, and, if it seems to be out of harmony with what has been the prevailing doctrine in the court, we will attempt to show its soundness, viz.: Solicitation, accompanied by the expectation of consent and laying on of hands without the use of such force as indicates a purpose to obtain intercourse at the very time, does not amount to assault with intent to commit rape on a girl under 15 years of age. Rape on a girl is with or without her consent, and with or without the use of force, and an indictment for such offense need not allege force (but if force be alleged it must be proved). Nonconsent and force are essential in rape of a woman. Mere carnal knowledge of a girl not yet 15 years of age is rape. This has been the law since 1856, with the exception that the age of consent (so called) was formerly 10 years, while the statute defining an assault to rape has remained unchanged. "If any person shall assault a woman with intent to commit the offense of rape, he shall be punished" (Pen. Code 1895, art. 608), etc., and the general provision, "An assault to commit any other offense is constituted by the existence of the facts which bring it within the definition of an assault coupled with an intention to commit such other offense." Article 611, Pen. Code 1895. The attempt, by means adequate to use any unlawful violence upon the person of another with intent to injure him is an assault, and among the injuries so intended may be a sense of shame. The word "woman" includes a female of any age. Pen. Code 1895, art. 21. The indictment in Hardin's Case charged assault with intent to commit rape by attempting by force to have carnal knowledge of a female under the age of 15 years. The facts are not given, but the allegations were held...