McGee v. State
| Decision Date | 20 April 1898 |
| Citation | 45 S.W. 709 |
| Parties | McGEE et al. v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Robertson county; W. G. Taliaferro, Judge.
Prada McGee and Maryland Fuller, alias Bussy Fuller, were convicted of the crime of rape, and they appealed. Affirmed.
W. W. Walling and Mann Trice, for the State.
Appellants were charged with rape upon Martha Green. The jury returned the following verdicts: And: The court submitted to the jury rape and assault to rape. The punishment for assault to rape is confinement in the penitentiary for any term not less than two years; the punishment for rape is death, or confinement in the penitentiary for life, or any term of years not less than five. Fifty years' confinement in the penitentiary is a legal punishment for either offense. Rape includes an assault with intent to commit rape. Now, the contention of appellant is that the above verdicts are insufficient to support the judgments; that, as 50 years may be the punishment for an assault to rape, and as rape and assault to rape were submitted to the jury, the verdicts should have stated for which offense the defendants were convicted. This proposition is absolutely correct. But the question is whether the verdicts fail to so state. Article 751, Code Cr. Proc. 1895, provides: "Where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree, naming it, but guilty of any degree inferior to that charged in the indictment or information." The question is not before us as to whether the jury convicted the defendant of a lesser degree than that charged. The question is whether the jury convicted the parties of the degree charged in the indictment in this case. What was the higher degree charged in the indictment? Evidently it was not an assault with intent to rape, but was rape. Now, how do the verdicts read? "We, the jury, find the defendant guity as charged in the indictment." The charge in the indictment was for rape. Assault with intent to rape was charged in one sense, which was by inclusion. It evidently was not charged directly, for, if so, article 751 could never have any practical operation. This article expressly provides that the accused can be convicted of an inferior degree to that charged in the indictment. Now, if this inferior degree was not charged in the indictment, either directly or by inclusion, the parties could not be convicted legally at all, because a conviction cannot be legal without allegations. This article settles the question. It draws the distinction clearly between the charged degree,—that degree which is set forth in the indictment and that degree of offense which is charged by inclusion. If assault to rape was charged in the indictment, within the meaning of this article, so was aggravated assault and simple assault, and so was an attempt to rape. If, then, these degrees were all charged, within the meaning of this article, to give the article practical effect the accused could be convicted of some offense not charged at all. To restate: We understand article 751 to draw a distinction between the degree which is charged directly and affirmatively in the indictment and the lesser degrees of the same offense, which are charged by inclusion. This article says that in substance by stating, "But guilty of any degree inferior to that charged in the indictment or information." Now, the verdicts in this case find the defendants guilty as "charged in the indictment"; and when we look to the indictment nothing is affirmatively charged except rape. While it is true, he is charged with assault to rape, aggravated assault, etc., by inclusion, yet that manner of charging is not that which is meant by article 751, but it means...
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