Harwell v. State
| Decision Date | 27 November 1901 |
| Citation | 65 S.W. 520 |
| Parties | HARWELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Johnson county; Wm. Poindexter, Judge.
J. T. Harwell was convicted of rape, and he appeals. Reversed.
Ramsey & Odell and Bledsoe & Bledsoe, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of 10 years. The first count in the indictment recites "that the grand jurors for the county of Johnson, state aforesaid, duly organized as such, at the November term, A. D. 1900, of the district court of said county, upon their oaths in said court present that J. T. Harwell, on or about the 1st day of March, one thousand eight hundred and ninety, A. D. 1900, and anterior to the presentment of this indictment," etc. It then proceeds to charge the offense of rape upon a girl under 15 years of age. On the trial defendant pleaded guilty. The evidence was introduced as required by article 555, Code Cr. Proc., and disclosed that appellant had carnal intercourse with Florence Lee West, a girl about 14 years of age at the time of the occurrence. This occurred in Johnson county. There was a second count in the indictment, which charged rape by force, threat, and fraud, without the consent, etc. The court, however, instructed the jury to convict under the first count. There is no evidence in the statement of facts indicating either force, threats, or fraud; consequently the second count is eliminated. It is contended a new trial should have been granted because of the uncertainty of the date in the indictment. We believe this point is well taken, and should have been granted. Drummond v. State, 4 Tex. App. 150; Blake v. State, 3 Tex. App. 149; Robles v. State, 5 Tex. App. 346; Goddard v. State, 14 Tex. App. 566; Coleman v. State, 62 S. W. 753, 2 Tex. Ct. Rep. 524; White's Ann. Code Cr. Proc. art. 439, and authorities there cited. The indictment is too uncertain. It alleges two different years,—one the year 1890, which bars the prosecution; and the other 1900, which does not bar it.
The judgment is reversed, and the cause remanded.
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