Edelen v. State
| Decision Date | 24 March 1926 |
| Docket Number | (No. 10032.) |
| Citation | 281 S.W. 1078 |
| Parties | EDELEN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
J. M. Edelen was convicted of assault with intent to commit rape, and he appeals. Affirmed.
Reeder & Reeder, of Amarillo, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.
The offense is assault with intent to commit rape, and the punishment is five years in the penitentiary.
The state's testimony shows that appellant, a man of mature years, took the prosecutrix, a girl seven years of age, into his house, and after subjecting her to indignities practiced only by moral perverts endeavored to have intercourse with her. Appellant, on the other hand, testified that the transaction did not happen as related by prosecutrix, and claimed that she was an innocent visitor at his house, and that he did nothing to in any wise shock the sensibilities of the most refined.
By proper bills appellant complains at the refusal of the court to instruct the jury that unless they found beyond a reasonable doubt that appellant committed the offense of assault with intent to rape to acquit him. In paragraph 4 of the court's main charge, he defines each and every element necessary to constitute the offense of assault with intent to commit rape, and then instructs the jury that unless each and all of the above-named requisites have been established by the evidence in this case beyond a reasonable doubt to acquit the defendant of the offense of assault with intent to rape. This charge correctly submits the very point asked by appellant and is as favorable, if not more so, to him than is the special charge asked. Appellant also complains because the court refused to instruct the jury to acquit the defendant, unless they found beyond reasonable doubt that he had committed the offense of aggravated assault. We think this charge was correctly refused, as the jury was entitled to find, under the instructions of the court and the facts of the case, that the appellant was guilty of an assault with intent to rape.
We do not think the appellant's complaint at the court's action in refusing his instruction, to the effect that assault with intent to rape could not be committed unless the accused unlawfully assaulted the female with intent then and there of penetrating the female organ of the prosecutrix with his male organ, is meritorious under the record in this case. The court had already in his main charge told the jury that it was necessary that they find beyond a reasonable doubt, first, that the accused committed the assault upon the prosecutrix at the time and place alleged in the indictment; second, that the assault was committed with the specific intent to have carnal knowledge of the prosecutrix; and that carnal knowledge, as used in the charge, meant the penetration of the private sexual organ of the female by the private sexual organ of the accused. As correctly contended by the state, this charge submitted what appellant requested in his special charge more fully and equally as favorably to the defendant as does the requested special charge.
Appellant also complains at the refusal of the court to withdraw the testimony of the prosecutrix for the reason that, as he contends, the state has failed to show that the witness possessed sufficient mental ability and intelligence to relate the circumstances inquired into without prompting and suggestions. Appellant contends that her testimony, on the contrary, shows that she did not possess the requisite intelligence to be a competent witness. We have very carefully examined this...
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Kacy v. State
...of the objection are true; it merely shows that such an objection was made. Branch's Annotated Penal Code, § 209; Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. It is clear that the trial court did no more when he signed the bill......
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Comeaux v. State
...form the basis of the objection are true. It merely shows that such objection was made. See Branch's P. C. § 209; Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. The bill not being sufficient to enable us to determine whether the ......
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Reynolds v. State
...of the res gestæ, and in the absence of such a showing this court must presume that the trial court ruled correctly. Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078. In bill No. 7 complaint is made to the action of the court in permitting the state to prove by the officer Ramsey that h......
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Henson v. State
...and clearly admissible. Upon the former appeal, we held that the admission of this evidence was not error. Also see Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078. In bill No. 4 complaint is made to the action of the court in permitting the state to prove by the witness Albright that ......