Mooring v. State

• Decision Date: 05 October 1921
• Docket Number: (No. 6309.)
• Citation: 234 S.W. 70
• Parties: MOORING v. STATE.
• Court: Texas Court of Criminal Appeals

234 S.W. 70

MOORING v. STATE.

(No. 6309.)

Court of Criminal Appeals of Texas.

October 5, 1921.

Rehearing Denied November 2, 1921.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

Robert Mooring was convicted of aggravated assault, and appeals. Affirmed.

Garrison, Pollard, Morris & Berry, of Houston, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

The appellant is under conviction for aggravated assault; punishment fixed at confinement in the county jail for six months.

The appellant was acquitted of the major offense of which he was charged, and we deem it unnecessary to recite the facts, save such as reflect appellant's defensive theory, which he insists should have been submitted to the jury in the following special charge:

"If you believe from the evidence in this case that the defendant, Mooring, on account of the previous conduct of the prosecutrix, had reason to believe and did believe that he could have carnal intercourse with her without force, and that in pursuance of such belief he proposed or undertook to have same, and that she resisted, and undertook to leave the car, and what he did to her, if anything, was to use sufficient force to keep her from leaving the car under the circumstances, and that he did not intend to have carnal intercourse with her without her consent, and by the use of such force as required in the court's main charge, or if you have a reasonable doubt as to such facts, then you will acquit the defendant, and say by your verdict herein, `Not guilty.'"

From appellant's testimony, it would appear that his acquaintance with the prosecutrix, Beulah Theall, began about three days before the date of the alleged offense; that the meeting occurred upon the street in Houston; that she gave him her first name and the telephone number; that he later called her over the telephone and made an engagement to take her riding; that he and a companion went at night to her home, and two other young ladies and two men went with the appellant, riding in a Ford sedan car, one of the girls sitting in the lap of one of the men, and that the parties were quite familiar in their relations, though nothing criminal or bordering thereon was done; that on the night of the alleged offense appellant made an engagement to meet the prosecutrix at a public dancing place; that they met and danced, and later, she and her girl companion, appellant and his male companion, by agreement, took a ride in the automobile, going to a point about eight miles from the city, which was about the same place that they had gone on the former occasion mentioned.

Appellant testified that during the ride he sat in the back seat with the prosecutrix, and she submitted, without protest, to familiarities such as playing with her breast and legs; that they stopped the car near a bridge, and his companion began "loving up" the other girl who was in the seat with him, and she hollered. From his testimony, we quote:

"When she did, Miss Theall tried to participate in the argument and raised up to help; when she did, I pulled her back in the car, trying to keep her out of the argument. I didn't notice her hollering over once or twice, `Let me help her,' so a farmer hollered and Mr. Cox let Miss Crenshaw aloose; she jumped out of the car, and Miss Theall began to holler, `Let me go; don't leave me.' I told her, `We'll get Miss Crenshaw back in the car, and we will come back to town.' She didn't say `Yes' or `No'; I turned her aloose, she run out there where Miss Crenshaw and the gentleman was, and that is the last time I have seen Miss Theall until yesterday, when...