Edwards v. State

• Decision Date: 01 December 1915
• Docket Number: (No. 3854.)
• Citation: 181 S.W. 195
• Parties: EDWARDS v. STATE.
• Court: Texas Court of Criminal Appeals

181 S.W. 195

EDWARDS v. STATE.

(No. 3854.)

Court of Criminal Appeals of Texas.

December 1, 1915.

Rehearing Denied January 5, 1916.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

W. A. Edwards was convicted of rape, and he appeals. Affirmed.

A. G. Lipscomb and R. E. Tompkins, both of Hempstead, and Atkinson, Graham & Atkinson, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., E. T. Branch and T. J. Harris, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

No brief has been filed in behalf of appellant, and, as this case has been so thoroughly briefed by counsel for the state, we adopt the brief as the opinion of the court. It is as follows:

"Appellant was convicted of rape alleged to have been committed on a female under the age of consent, and his punishment was assessed at five years, and from the judgment thereon he appeals.

"1. Appellant contents that the evidence is insufficient to support the verdict. It is unnecessary to give any extended details of the testimony, since the little girl, who was 12 years old, testified positively that the appellant with her consent had carnal knowledge of her, and penetrated her private parts with his male member, and the medical testimony tends to corroborate her. Appellant denied he had carnal knowledge of the child, but the jury evidently believed her testimony, and there is nothing in the record to indicate that her testimony was contrary to human experience or inconsistent with the truth. It is to be noted too, that appellant himself admitted that she was found in his room at night by his son and daughter-in-law, and his explanation of why she was under his bed when they came into his room is strongly corroborative of the little girl's account of their intimacy and of his attempts to lead up to the final accomplishment of his purpose. Appellant testified that when his son discovered the little girl in his room under the bed: `He told me I could not make a whorehouse out of his home. He told me I ought to be ashamed of myself. I told him I was old enough to attend to my own business.' The child testified that appellant always used vaseline on himself and on her, and his bottle was seen by his son and daughter when they came in the room. While more than one transaction was testified to, yet the court confined the consideration of the jury to one act, and the charge of the court is full and fair, and was not objected to.

"When the jury have solved the issues presented in the testimony under a fair and proper charge of the court, and there is sufficient evidence in the record, if believed, to support the verdict of guilty, and that verdict is approved by the trial judge, whose duty it is to set the conviction aside if not satisfied of the guilt of the accused, the verdict will not be set aside on appeal unless clearly wrong. We think the testimony is ample to support the verdict, and that appellant had reason to congratulate himself on the fact that he was awarded so mild a punishment. To constitute rape upon a female under the age of consent, no more force is required than that necessarily involved in the act of penetration, and the fact that she consented thereto is no defense. Rodgers v. State, 30 Tex. App. 528, 17 S. W. 1077; Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476; Ulmer v. State, 71 Tex. Cr. R. 579, 160 S. W. 1188; Turner v. State, 72 Tex. Cr. R. 649, 163 S. W. 707.

"The authorities in this state sustain the proposition that carnal knowledge of a female under the age of consent, and not the wife of the party having carnal knowledge of her, is rape, no matter what the circumstances, and the question of consent or whether the carnal knowledge was had by force, threats, or fraud is wholly immaterial. Anschicks v. State, 6 Tex. App. 524; Mayo v. State, 7 Tex. App. 347; Fowler v. State, 148 S. W. 576; Turner v. State, 72 Tex. Cr. R. 649, 163 S. W. 707.

"2. Appellant has five other grounds in his amended motion for a new trial, each complaining of supposed errors in the admission or rejection of testimony. The bills of exceptions seeking to present these matters are too incomplete to be considered, and are not, as required by law, sufficiently full and certain in their statements as that in and of themselves they disclose all that is necessary to manifest the supposed errors.

"3. The first bill in full is, after the style of the case: `Be it remembered that on the trial of the above entitled and numbered cause, when the prosecutrix was testifying, defendant's counsel asked her the question as to whether her mother had sent her to the defendant to ask the defendant to meet her mother that night about the time the store was closed, to which the witness would have replied that such message had been sent, which testimony was objected to by the state, to...