McCullough v. State
| Decision Date | 30 November 1898 |
| Citation | 47 S.W. 990 |
| Parties | McCULLOUGH v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Rusk county; W. J. Graham, Judge.
James McCullough was convicted of an assault with intent to rape, and he appeals. Reversed.
W. C. Buford, for appellant. John B. Carter and Mann Trice, for the State.
Appellant was convicted of an assault with intent to rape, and his punishment assessed at confinement in the penitentiary for a term of three years; hence this appeal.
Appellant assigns a number of errors, but there is only one which requires notice. The court failed to charge on aggravated assault, and to this action of the court appellant excepted. An examination of the record strongly suggests that this charge should have been given. The general rule on this subject is as follows: "In order to convict a defendant on a charge of assault with intent to commit rape, the evidence should show, not only an assault, but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so at all events, and notwithstanding any resistance on her part." Our statute defines force as follows: "The definition of force as applicable to an assault and battery applies also to the crime of rape, and it must have been such as might reasonably be supposed sufficient to overcome resistance taking into consideration the relative strength of the parties and other circumstances of the case." Pen. Code 1895, art. 634. We do not understand our statute to limit the amount of force prescribed in the rule as above set out,—that is, that the evidence must show beyond a reasonable doubt (1) an assault on the prosecutrix; (2) that he had at the time the specific intent to have carnal knowledge of her; (3) that he intended to use all his power to overcome any resistance that the prosecutrix might put forth, to have carnal knowledge of her without her consent. Applying the above rule to the facts in this case, in our opinion the court should have charged on aggravated assault from the state's standpoint, for appellant denies any assault whatever. The testimony of the prosecutrix required such a charge. She testified, in effect, that, appellant and herself being alone together at her mother's house, he requested her to copulate with him, and offered her money to gain her consent; that she refused, and then he laid hands on her, and threw her down on the floor a great number of times (she says eight of ten...
To continue reading
Request your trial
-
State v. Neil
... ... intent to commit rape, "it must appear from the evidence ... beyond a reasonable doubt that the accused intended, if it ... became necessary, to force compliance with his desires at all ... events and regardless of any resistance made by his ... victim." ( McCullough v. State (Tex.), 47 S.W ... 990; Adams v. People, 179 Ill. 633, 54 N.E. 296; ... Brown v. Commonwealth, 102 Ky. 227, 43 S.W. 214; ... Tyler v. State, 46 Tex. Cr. App. 10, 79 S.W. 558; ... Coffee v. State (Tex. Cr.), 76 S.W. 761; Dockery ... v. State, 35 Tex. Cr. Rep. 487, 34 S.W ... ...
-
Everett v. State
...v. State, 30 Tex. App. 498, 17 S. W. 1068; Shields v. State, 32 Tex. Cr. R. 503, 23 S. W. 893; Cox v. State, 44 S. W. 157; McCullough v. State, 47 S. W. 990; Taylor v. State, 50 Tex. Cr. R. 362, 97 S. W. 94 ; Taff v. State , 143 S. W. 1156." Such is the general rule. Wharton, Crim. Law, § 4......
-
Rettig v. State
...Appellant insists we were in error in holding that the issue of aggravated assault was not raised by the evidence, and that McCullough v. State, 47 S. W. 990, is decisive of the question. We have again examined the facts of the instant case in the light of the McCullough opinion, and are un......