Groce v. State

• Decision Date: 28 March 1934
• Docket Number: No. 16371.,16371.
• Citation: 70 S.W.2d 163
• Parties: GROCE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 163

70 S.W.2d 163

GROCE v. STATE.

No. 16371.

Court of Criminal Appeals of Texas.

March 28, 1934.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Claude Groce was convicted for attempt to rape, and he appeals.

Affirmed.

Ben F. Gafford, of Sherman, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for attempt to rape; punishment, two years in the penitentiary.

We are not favored with a brief by either the state or the appellant in this case. The facts show that appellant in his car took prosecutrix, a girl under eighteen years of age, some distance out in the country from Sherman, Grayson county, Tex., to where he turned up a lane, parked his car and there attempted to have carnal knowledge of said girl, all of which he admitted as a witness in his own behalf, but claimed to have acted with her consent. She being under the age of consent, there is no merit in appellant's various contentions resting such claims on said proposition.

Appellant's special charge No. 1 sought to have the jury instructed on the law of aggravated assault, which we think not in the case, and therefore conclude that said charge was properly refused. Special charge No. 2 asked that the jury be told that if the girl gave her consent to have intercourse with appellant, or if from her conduct same could be reasonably implied, the jury should acquit. This is clearly in the face of the statute denying to a girl under eighteen years of age the legal power to give such consent. A special charge that the jury should not consider a statement of counsel for the state in argument, is presented in a bill of exceptions which is so qualified as that the bill presents no error.

Bill of exceptions No. 1 complains of the refusal to grant a new trial sought on the ground that the offense charged was an attempt to rape, while that proved was an assault with intent to commit rape, hence a variance. Appellant as a witness denied any assault upon prosecutrix, save that he admitted taking hold of her with her consent, that he fondled her person and tried to have sexual intercourse with her both in a car and on the ground, without the accomplishment of his desires. The testimony of the girl in many respects lends color to the theory of willingness. She said that she knew appellant was a married man before he took her out in the country, and before he parked his car in the lane mentioned. She testified that he put his arms around her, kissed her, felt of her breast, etc. She also admitted that when a car came up behind them and honked, and appellant had to back his car out and let young Bradshaw, who was driving said other car, go through, that she made no effort to communicate with Bradshaw, and did nothing indicating to Bradshaw her objection to what was going on. She testified that before Bradshaw came up appellant had told her what his intentions were in regard to having intercourse with her; that he had unbuttoned his pants, and had put his hand in her bosom, etc. Bradshaw, who was a witness in the case, swore that when he drove up behind appellant's car, appellant was on top of the woman in the car, and when witness honked his car appellant got under the wheel, moved his car, and that the woman in said car covered up her head and "scooted down in the car," so witness could not tell who she was. It...