Hardin v. State

• Decision Date: 15 June 1898
• Citation: 46 S.W. 803
• Parties: HARDIN v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W. 803

HARDIN v. STATE.

Court of Criminal Appeals of Texas.

June 15, 1898.

Appeal from district court, Frio county; M. F. Lowe, Judge.

John Hardin was convicted of an assault with intent to rape, and appeals. Reversed.

John T. Bivens and F. H. Burmeister, for appellant. Mann Trice, for the State.

HURT, P. J.

The charging part of the indictment reads: "That John Hardin on or about the 17th day of April, 1897, in the county of Frio, then and there unlawfully in and upon Eva May Collins, a female under the age of fifteen years, did make an assault with the intent then and there to commit the offense of rape, by then and there attempting by force to have carnal knowledge of her, the said Eva May Collins; the said Eva May Collins being then and there a female under the age of fifteen years, and the said Eva May Collins not being then and there the wife of the said John Hardin." This indictment is sufficient if an assault with intent to rape can be committed upon a female under the age of 15 years, she consenting thereto in fact, but insufficient if consent defeats the assault. Now, then, can a person be guilty of an assault with intent to rape a girl under the age of 15 years, she consenting to what was done? We will not discuss a case in which the girl has not the capacity in fact, but one in which she does consent, and is not 15 years of age. There can be no assault without an attempt, but all attempts do not include an assault. In this case it is not necessary to discuss the difference between an assault and an attempt to commit a crime. We have an offense known as an attempt to commit rape. Article 640, Pen. Code 1895, describes this offense as follows: "If it appear, on the trial of an indictment for rape, that the offense, though not committed, was attempted by the use of any means spoken of in articles 634, 635 and 636, but not such as to bring the offense within the definition of an assault with intent to commit rape, the jury may find the defendant guilty of an attempt to commit the offense, and affix the punishment prescribed in article 608." The attempt referred to in this article falls short of an assault, but the offense of rape must be attempted by the use of some of the means named in articles 634, 635, and 636. The provisions of article 640 cannot apply to a case in which the girl consents. Why? Because article 640 requires that the rape must be attempted by the force, threats, or fraud defined in articles 634, 635, and 636. Article 608 provides, "If any person shall assault a woman with intent to commit the offense of rape, he shall be punished by confinement in the penitentiary for any term of years not less than two." Article 611 provides: "An assault with intent to commit any other offense is constituted by the existence of the facts which bring the offense within the definition of an assault, coupled with an intention to commit such other offense, as of maiming, murder, rape or robbery."

Now, then, the question: Is there an assault in attempting to have carnal knowledge of a female under the age of 15 years, she consenting; the attempt being of such a character as to constitute an assault, she not consenting? What, therefore, is an assault? To correctly understand the meaning of an assault, we must look to that which constitutes an assault and battery. Article 587, Pen. Code 1895, defines both an assault and battery and an assault. It reads: "The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it an immediate intention, coupled with an ability to commit a battery, is an assault." "Any attempt to commit a battery" means any attempt to inflict unlawful violence upon the person of another with intent to injure him. "Or any threatening gesture, showing in itself or by words accompanying it," must be such as to show an intention coupled with the ability to inflict unlawful violence upon the person of another with intent to injure him. Article 633 provides: "Rape is the carnal knowledge of a woman without her consent, obtained by force, threats or fraud, * * * or the carnal knowledge of a female under the age of fifteen years, other than the wife of the person, with or without her consent, and with or without the use of force, threats or fraud." It is settled in this state that an assault cannot be committed by mere threats, nor can an assault to rape be committed by an attempt to have carnal knowledge of a woman by fraud. Especially is this the case under our statute, because fraud only applies where the woman is induced to believe that the accused is her husband, or in administering, without her consent, some substance producing unnatural sexual desire, or such stupor as prevents or weakens resistance, and the offense must be committed while she is under the influence of such substance. It will be noted further, from the provisions of this statute, that the woman must be induced to believe that the accused was her husband, or some substance must be administered, without her knowledge or consent, producing unnatural desire, or such stupor as prevents or weakens resistance. In this case the female was not imposed on by fraud; no substance was administered to her; and if it had been administered to her, with her knowledge or consent, there would have been no fraud, under the provisions of this statute, because it expressly provides that the substance must be administered to her without her knowledge or consent. It is insisted that she cannot consent, and therefore the party would be guilty of an attempt or an assault, depending on the circumstances of the case; that in law she cannot consent; and that, therefore, the case would be as though she had not consented, and resisted to the fullest extent. Back to the definition of an assault and battery and an assault, the proposition is this: That as the statute denounces, with a heavy penalty, carnal intercourse with a girl under 15 years of age, the unlawful violence consists in this intercourse, and that, therefore, any attempt to inflict this violence would be an assault. We have very carefully examined the authorities upon this subject, and all base the conclusions reached in the opinions upon the theory that, as the consummated act is prohibited and denounced as a crime, the violence consists in having carnal intercourse with the girl, and that, as she cannot consent so as to relieve the consummated act of criminality, therefore she cannot consent so as to prevent that which would be an assault without her consent from being an assault with her consent. The following cases support this proposition: Hays v. People, 1 Hill, 351; People v. McDonald, 9 Mich. 150; McKinny v. State, 29 Fla. 565, 10 South. 732; Davis v. State, 31 Neb. 247, 47 N. W. 854; Territory v. Keyes, 5 Dak. 244 38 N. W. 440; People v. Tenelshof, 92 Mich. 167, 52 N. W. 297; Fizell v. State, 25 Wis. 364. There are a number of other cases, no doubt holding the same doctrine as the cases cited. In Davis v. State, 31 Neb. 247, 47 N. W. 854, which seems to be the most elaborate opinion written on the subject, we find this proposition stated: "If, as all agree, it is immaterial upon a charge of committing the completed act, which includes an assault, no reason but an extremely technical one can be urged why it should not be so upon the charge of assault with intent to commit the completed act. Indeed, to speak of an assault upon her without her consent, with intent to carnally know and abuse her with her consent, seems to involve a contradiction in terms; but when it is once construed with the intention of the law to declare that the young girl shall be deemed incapable of consenting to such an act to her injury, and that evidence of any consent by her shall be incompetent in defense to an indictment thereunder, and that although she gives a formal and apparent consent, yet in law, as in reality, she gives none, because she does not and cannot take in the meaning of what is done, all legal difficulty disappears, and the conclusion may be properly urged that the assault is without her consent and against her will." There are two fallacious propositions, to our minds, in this reasoning: First, we would observe that it is a dangerous thing to concede premises. Conceding premises frequently leads to very fallacious conclusions. Take this assertion: "The completed act, which includes the assault." This is begging the question. Concede this proposition, and the other follows of course,—that the assault is committed, though the girl consents, because the consummated act includes an assault. We readily concede that in all rape at common law an assault was included, but we most emphatically deny that in every case of rape in Texas assault is included. We are not discussing attempts. Another proposition, to our minds, appears incongruous and very contradictory: "And that although she gives a formal and apparent consent, yet in law, as in reality, she gives none, because she does not and cannot take in the meaning of what is done." How the girl can give a formal and real consent, and yet at the same time does not consent, is incomprehensible to us. Now, it is assumed further that she cannot give consent. This is in direct conflict with our statute, which provides, "the carnal knowledge of a female under the age of fifteen years, * * * with or without her consent." Pen. Code 1895, art. 633. This concedes that she can consent. This statute does not say that if any person shall have carnal intercourse with a female under the age of 15 years, etc., he shall be guilty of rape; but it reads, "with or without her consent, and with or without the use of force, threats or fraud." It is altogether immaterial, in committing the consummated act, whether the girl consented or not,...