Lewis v. State
| Decision Date | 18 January 1950 |
| Docket Number | No. 24571,24571 |
| Parties | LEWIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
C.C. Triplett, George West, Lyman, Pittman,
John H. Miller, District Attorney, Sinton, appellant.
John H. Miller, District Catorney, Sinton, R. E. Schneider, Jr., County Attorney, George West, George P. Blackburn, State's Atty., of Austin, for the State.
Appellant was charged with rape upon one Margaret Mozelle Lewis, by force, threats and fraud, and upon his conviction, was assessed the penalty of death by the jury.
The testimony shows that this girl was the child of appellant and was sixteen years of age. The indictment contained two counts: the first charging rape of a woman by force, threats and fraud; and the second count, rape upon a female under the age of eighteen years and not the wife of the appellant.
The trial court submitted only the first county to the jury, although the charge in its second paragraph thereof did set forth the definition of rape as provided in the Penal Code, Art. 1183, as follows: '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 eighteen years other than the wife of the person with or without her consent and with or without the use of force, threats or fraud.'
Much complaint is made in the objections to the court's charge relative to the inclusion in such definition of the portion relating to rape of a female under the age of eighteen years. It is correctly asserted that the election of the trial judge to charge alone upon rape by force was an abandonment of the count charging rape under the age of consent, and the record shows that such cause was submitted to the jury on force alone as charged in the first count. Appellant says that the inclusion of rape under the age of consent in the preliminary definition thereof led the jury to believe that they could convict upon either count, and gave them the privilege of considering both counts, same having been set forth in the charge as constituting the crime of rape. It is found, however, that in the charge, wherein the law was applied to the facts, the jury were told that in this case the indictment charged a rape by force, and a definition of such force was then given and no mention of a rape under the age of consent was mentioned therein. This was but a casual mention in such preliminary definition of rape, and thereafter, the court made it plain that such rape should be proven by force alone. We are cited to the case of Serio v. State, 22 Tex.App. 633, 3 S.W. 784, which we do not find to be in point. In that case a nolle prosequi had been entered as to the first count charging a rape upon a ten year old child, leaving, as in this present case, a count charging a rape by force, threats and fraud upon a woman against her consent. The trial count charged upon both counts connected together, that is, the rape of a female under the age of consent, or the rape of a woman against her consent, etc., allowing a conviction under either count of such indictment.
This record shows that the under the age of consent count was not submitted to the jury, and we think its cursory mention could not have confused nor misled this jury. Such a mere statement relative to rape under the age of consent, standing alone, is not error. See Salazar v. State, 55 Tex.Cr.R. 307, 116 S.W. 819; Fite v. State, 139 Tex.Cr.R. 392, 140 S.W.2d 848; Calyon v. State, 76 Tex.Cr.R. 83, 174 S.W. 591.
Appellant next complains relative to a failure of the trial court to give to the jury certain specially requested charges concerning the amount and character of resistance offered by the prosecutrix to her father's advances and efforts to accomplish the acts charged herein. These matters, while possibly not shown to have been properly called to the trial court's attention, will, nevertheless, be considered under the general proposition as to whether or not the girl gave her consent to her father's unnatural acts. Of course, under the charge presented by the court, it became the duty of this girl to resist her father's advances and to thus use all the force in her power, taking into consideration the previous relationship between the parties and the surrounding circumstances at the time; and the accused must have used such force as was necessary, such as might reasonably be supposed to overcome all resistance, taking into consideration the relative strength of the parties and other circumstances of the case. See Art. 1184, Vernon's Ann.Tex.P.C., and cases cited thereunder.
Relative to the force used and the resistance offered, we quote from the testimony of the girl as found in the record and summarized in the State's supplemental brief as follows: 'Prosecutrix is a girl of a little over 16 years of age, and is the daughter of Appellant. She weighed about 130 pounds and he weighed about 240 pounds; and that he is one of the most powerful men in Live Oak County. That on or about the 18th day of May, 1949, prosecutrix had gone to a picture show with one John Cherry, returning to her home, the telephone office, which was about a block from the picture show, about 10:30 that night. That her father, the Appellant, met her when she came in. That he called her a son of a bitch, a little rat, and a good for nothing. That he pulled her hair, slapped her face two or three times, knocked her down twice, and kicked her on the knee two or three times. That she still had a scar on her knee and that her knee was still sore and blue. That he made her get into his car to go find John Cherry, drove to a barbecue stand and got a Coke; that he turned off Highway No. 281 and finally drove on the Clegg road where they became stuck in the sand. That Burrell and his son helped them out of the sand and they drove out to the Burns ranch. That after arriving in the Burns pasture he made her take a drink, telling her that if she didn't he would slap the side of her head off. He then made her get out of the car, by pushing her out, and told her to take off her clothes, threatening to knock her down and 'slap her face off' if she didn't take them off and that he would tear them off. That after...
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