Huebsch v. State

• Decision Date: 30 May 1923
• Docket Number: (No. 7042.)
• Citation: 251 S.W. 1079
• Parties: HUEBSCH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1079

251 S.W. 1079

HUEBSCH v. STATE.

(No. 7042.)

Court of Criminal Appeals of Texas.

May 30, 1923.

Appeal from District Court, Gonzales County; C. K. Quin, Judge.

A. A. Huebsch was convicted for assault with intent to rape, and he appeals. Reversed and remanded.

W. H. Blanton, W. B. Green, and Rainbolt & Midkiff, all of Gonzales, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The conviction is for assault with intent to rape; punishment fixed at confinement in the penitentiary for a period of two years.

The prosecutrix was a girl slightly under 18 years of age. She was a member of the Roman Catholic Church. The appellant was a priest of that church. She was preparing for confirmation under his instructions. Others attended the class, but the instructions were given separately. In her testimony she related two incidents; the first occurring in January, 1921, and the other in February of that year. The charge of the court is so framed as to eliminate the first as a basis for the conviction, though the evidence relating to it was permitted to go to the jury upon the issue of intent. On the first occasion, according to the prosecutrix, she and others were awaiting instructions for the purpose of confirmation. She entered his room, and he locked the door, stating that there should be but one there at the time. While there, he attempted to lift up her dress and grab her legs, and put his hand on her legs below the knee. Only she and the appellant were in the room at the time. She said that from his actions she had her thoughts about his intentions. Touching the episode upon which the prosecution is based, we quote from her testimony:

"The first time that he ever did these things was on Saturday; it was at the beginning of the year 1921. * * * Yes, sir, something occurred in February, 1921; it occurred in his room. Being asked if anything else happened on further in February, witness said he did not do her anything, after this time she has already related. After that instance which I have just had reference to, that I just testified to, there were some other instances. Again the Saturday after that he wanted to examine me. He was lifting up my dress. That was in his room in the parish home, about which I have testified before. It was in his office. He told me to let him see; that he is like a doctor. The first thing he did before he said that he was trying to catch me or get hold of my neck. He got hold of me, although I objected. He caught my neck with his hands. He put his hands around my neck, and asked me for a kiss. I told him that he could not kiss me. He kissed me on my cheek about three times. * * * When he had his hands around my neck and was kissing me, he was lifting up my dress at that time, and was holding me around the neck. When he was lifting up my dress, he told me that he wanted to examine me. He did not state why he wanted to examine me. No, he did not say anything to me about what right he had to examine me, if any. It was on Saturday when he said he was like a doctor. When he said he was like a doctor, and wanted to examine me, he was lifting up my dress. While he had me around the neck with his arm and kissed me, and was lifting up my dress, saying he wanted to examine me, I was holding down my dress. To be exact, I was holding my dress, and did not want to allow him, or to give him the privilege. The doors were locked on this occasion I am talking about.

"Being asked if there was any other time that anything of this character occurred, about which she has related, between herself and the priest, the defendant, witness answered that he hasn't done anything to her. Being asked if anything of this kind occurred before, or if these were the only two times anything like that occurred, witness answered that he didn't want anything from her, only picking up her dress. * * *

"When he was trying to put up my clothes, and was kissing me on the cheek, and having his arm around my neck, and I was defending myself, I was protecting myself so he wouldn't do nothing to me, so he wouldn't do something to me."

On cross-examination she testified that she continued to go to the parish house and receive instructions until March 6th, when she was confirmed; that the two instances related by her were the only occasions upon which appellant had been guilty of any misconduct towards her. She also said that she did not tell her mother about it until after the 6th of March, because appellant had forbidden her to do so. On redirect examination she used this language:

"When I testified yesterday that the priest wanted nothing from me when he lifted my dress, I meant, when I made that expression, that I thought he wanted something. Being asked if she understood that yesterday she did testify that `the priest wanted nothing from me when he lifted my dress,' witness answered: `He did not want anything, but I thought what he wanted. That is what I said yesterday.' Being asked what she thought he wanted, witness answered: `He did not want, but I was thinking, or I had my thoughts.'"

The judgment is attacked upon the ground that the evidence is not adequate to support the verdict. The statute defining the offense of assault with intent to rape is in these words:

"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." Penal Code, art. 1029.

Whether an attempt to have carnal knowledge of a female under the age of consent will support a prosecution for an assault with intent to rape has been the subject of much discussion and contrariety of opinion as reflected by the decisions of this court and that of other jurisdictions. In Hardin's Case, 39 Tex. Cr. R. 426, 46 S. W. 803, the decision was against the validity of such a prosecution. The majority opinion was written by Judge Hurt, and the dissenting opinion by Judge Henderson. Both opinions display an uncommon degree of research and are worthy of the masterly minds producing them. In Croomes' Case, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882, the opinion in Hardin's Case was overruled in the absence of one of the judges. The Cromeans Case, 59 Tex. Cr. R. 611, 129 S. W. 1129, was first affirmed. Judge Ramsey, in the meantime, upon the death of Judge Henderson having come upon the court, approved the dissenting opinion in Hardin's Case, supra, but reluctantly consented to the affirmance of the Cromeans Case because the facts therein did not bring it within the principle announced by Judge Henderson in his dissenting opinion in the Hardin Case. Presiding Judge Davidson consented to the affirmance with the statement that he regarded the majority opinion in the Hardin Case correct. The case went into the hands of Special Judge Cobb, who wrote an elaborate opinion reversing the case upon the insufficiency of the evidence. He held, however, that although there was no force, article 1029, supra, would embrace the offense of assault to rape upon a girl under the age of consent, and endeavored to state the circumstances under which the conviction could be had. The formula announced by him in that opinion is embraced in a subdivision of the charge in this case in these words:

"If an adult male takes hold of a female under the age of 18 years and handles her in such manner as under the circumstances of the particular case demonstrates a present intent to at once subject her to his will, she consenting or not, as that he may then at the very time have carnal intercourse with her, he would be guilty of an assault with intent to rape.

"On the other hand, if such person so takes hold of such female for the purpose only of kissing her or fondling her, having no intent to have carnal knowledge of her at the very time, he would not be guilty of assault with intent to rape. There must be such force used in connection with the circumstances of the case to establish beyond a reasonable doubt the purpose of the defendant to at the very time have carnal intercourse with the female in question, with or without her consent, regardless of how slight said force may be."

This character of cases has since the Cromeans Case, supra, given this court much concern and...