Fields v. State

• Decision Date: 27 January 1894
• Citation: 24 S.W. 907
• Parties: FIELDS v. STATE.
• Court: Texas Court of Criminal Appeals

24 S.W. 907

FIELDS v. STATE.

Court of Criminal Appeals of Texas.

January 27, 1894.

Appeal from district court, Fannin county; E. D. McClelland, Judge.

Walter Fields, convicted of burglary with intent to commit rape, appeals. Reversed.

Henry A. Cunningham and Dorset Carter, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

The burglary set out in the indictment was alleged to have been with intent to commit the offense of rape upon Clara Herz. The substance of the testimony of Miss Herz is that a negro boy, whom she recognized to be the defendant, came to the window of the room occupied by herself and a lady friend, raised the window, pushed aside the screen, thrust his arm through the aperture thus made, and touched the left side of her face with the ends of his fingers. She screamed, and he ran away. It was at night. The touch awakened her. A lady friend was sleeping with her. The sheriff and other officers testified, for the state, that defendant stated to them that he went to the room of Miss Herz thinking he could have intercourse with her; that he raised the window, pushed away the screen, and touched her face with his hand; that he thought, as she had been kind to him, she would probably consent to his desires; that he had "hitched her horse to the buggy for her on at least one occasion. She screamed, and I ran away." Defendant's testimony was in substance the same as his statement to the officers. He further testified that he was not aware that Miss Herz had anybody with her; that he wanted to have intercourse with her, but did not go there with intent to force her. It was also shown that defendant was of weak mental condition, and "had about half sense," but that he knew it was wrong to commit rape. It was also testified that he was about 15 years of age, while he stated his age to be 13. We deem this evidence insufficient to prove an intent to commit rape. While it is clear that his purpose was to have sexual intercourse with Miss Herz, yet the evidence does not show that he intended to use such force as would reasonably overcome all resistance to his advances. He rather anticipated consent, and believed his offer would be accepted. Under the terms of the statute and the well-settled law of this state, the evidence does not support the judgment; wherefore it is reversed, and the cause remanded.

SIMKINS, J., dissents.