Davis v. State

Decision Date01 January 1874
Citation42 Tex. 226
CourtTexas Supreme Court


APPEAL from DeWitt. Tried below before Hon. D. D. Claiborne.

Burrill Davis was charged by indictment that he “unlawfully, wickedly, feloniously and of his malice aforethought in and upon Mary Schwab, then and there, a female under the age of ten years, did make an assault, and he, the said Burrill Davis, did by force then and there her, the said Mary Schwab, rape, penetrate and carnally know, without the consent then and there of her, the said Mary Schwab.”

On the trial the injured party, Mary E. Schwab, being examined by the court, was pronounced incompetent to testify on account of want of understanding the obligation of an oath.

Mrs. Betty Schwab testified that Mary Schwab, the person alleged to have been injured, was her daughter, over eight years old now; was eight years old Sept. 16, 1874 (trial was in December of that year); that between 12 M. and 1 P. M. of the 14th of Sept., 1874, in De Witt county, Texas, the accused was called by witness to dinner, he being a colored laborer employed by the husband of witness to pick cotton, not far from the dwelling. Accused not obeying her call she sent her daughter Mary (alleged to have been injured) to tell him to come to dinner; waiting a reasonable time for him to come to dinner after he was sent for by her daughter, witness became uneasy about the cause of his delay, and that of her daughter Mary, and went out in quest of them; having proceeded about twenty steps from the house into the cotton patch, witness suddenly came upon the defendant and her daughter Mary E. Schwab. The defendant was lying on his left side, on the ground, with Mary, her daughter, in his arms and in the act of copulation. The defendant remarked, “Mrs. Betty, you have caught me,” and caught witness by her clothes and hung on to her, begging her not to tell on him, jumped up and followed witness to the fence a few yards off, as she led her daughter Mary away, partly dragging her feet after her, as she was led away, saying he squeezed her so tight she could not hallo, and crying apparently from pain from the defendant's treatment. The defendant then ran off towards the river for his house. No one else being present, witness led and dragged her daughter to her German neighbor, Martha Swaab's house, where she (Mary) lay most of that evening abed, complaining of pain and hurting of her side and head, and with fever; that the next day, and afterwards, she was able to sit up some and help nurse the children at Martha Swaab's, but always at the time, and frequently since then, complaining of her side and head, and having fever accompanying her side complaints.

(The remaining part of this witness's testimony is given in the opinion.)

The accused was convicted, and his punishment fixed at hanging. After sentence he has appealed.

W. R. Friend, for appellant, cited Wharton's Cr. Law, vol. 2, Sec. 1138, 1139, 1146 and notes 1149; 1 Hale, 628, 631; 1 Hawkins, Ch., 41; 4 Black. Com., 213; State v. Johnson, 11 Texas, 32; State v. Williams, 36 Texas, 352;Cain v. State, 18 Texas, 387;Stephanes v. State, 21 Texas, 206.

George Clarke, for State, cited Wharton's Am. Cr. Law, Sec. 1137, 1139; 2 Bishop, Am. Cr. Law, Sec. 1132; Roscoe's Cr. Ev., 808; Wharton & Stille, Med. Juris., Sec. 427 et seq.; 1 Russ on Cr., 678, 679; 11 Cush., 547;29 Cal., 575; 2 Bish. Cr. Proc., Sec. 954.


The objections urged against the indictment are not well taken. It is not drawn with grammatical accuracy, or in strict conformity with common law precedents. The only material defect in it, however, in these particulars, is in the improper substitution of the noun “rape” for the verb “ravish.” It is unquestionably well settled that an indictment for this offense under the common law must contain the word “ravish.” To charge merely that the defendant “did carnally know,” etc., is not sufficient to support the indictment. The reason given for this is that, by the charge “did ravish,” force and violence by the man, and want of consent of the woman, are implied, while by that of ““carnal knowledge” merely, they are not (Harman v. The Commonwealth, 12 S. & R. 69). But the offense with which the appellant in this case is charged, is the rape of a female under ten years of age, which as defined by the code, is the carnal knowledge of such female, with or without consent, and with or without the use of force, threats or fraud. (C. C., Art. 523). Whether the averment, as in this indictment, that the carnal knowledge was had by force, and without consent, would obviate the necessity of the specific charge that the defendant “did ravish” in an indictment for the rape of a female over ten years of age, or if not, whether the averment that he “did rape” would not be ““understood in common language, taking into consideration the context and subject matter relative to which” these words “are employed” in the indictment, should not be held to impart the same meaning as “did ravish,” need not be determined at present.

The essential fact which constitutes the offense with which appellant is charged, is unquestionably alleged in the indictment with as much fullness and perspicuity as is required Indeed, the most plausible objection to the conviction under the indictment is, that although it was unnecessary to do so, still, as the offense is alleged to have been committed without consent, and by force, it became...

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21 cases
  • The State v. Davis
    • United States
    • Missouri Supreme Court
    • November 14, 1911
    ...information of this kind may be rejected as surplusage. [State v. Scroggs, 123 Iowa 649, 96 N.W. 723; State v. Newton, 44 Iowa 45; Davis v. State, 42 Tex. 226; Buchanan v. State, 41 Tex. Crim. 127, 52 S.W. McQueary v. People, 48 Colo. 214, 110 P. 210; State v. Hann, 73 Minn. 140, 76 N.W. 33......
  • Beard v. State
    • United States
    • Arkansas Supreme Court
    • June 4, 1906
    ... ... Cr. Law p. 815, ... as the particular words to express that essential fact ...          The ... case of Harmon v. Com., was decided in 1824. Texas ... follows it in several cases. Gibson v ... State, 17 Tex. Ct. App. 574; Williams v ... State, 1 Tex. Ct. App. 90; Davis v ... Texas, 42 Tex. 226 ...          The ... case of O'Connell v. State, 6 Minn ... 279, seems to hold the same view in dicta, but in ... that case the form of indictment for rape suggested by the ... statute was: "forcibly ravished C. D., a woman of ten ... years and ... ...
  • Dyer v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 7, 1925
    ...also insists that the word "ravish," because of its use, becomes descriptive of the offense, hence must be proved. Not so. Davis v. State, 42 Tex. 226; Anschicks v. State, 6 Tex. App. 524; Mayo v. State, 7 Tex. App. 347; Moore v. State, 20 Tex. App. 278; Whitehead v. State, 61 Tex. Cr. R. 5......
  • Vasquez v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 21, 1942
    ...carefully for circumstantial evidence tending to confirm the main witness.' (2 Bish.Cr.Proc., § 967; 4 Blacks Com., marg. p. 214; Davis v. State, 42 Tex. 226.)" In considering the many authorities on the subject, we reviewed with amazement the number of cases which are found in the reports ......
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