Passmore v. State
| Decision Date | 06 December 1890 |
| Citation | 15 S.W. 286 |
| Parties | PASSMORE v. STATE. |
| Court | Texas Court of Appeals |
Appeal from district court, Shelby county; E. B. LEWIS, Special Judge.
Davis & Luckey, for appellant. Asst. Atty. Gen. Davidson, for the State.
This conviction is for assault with intent to rape, and rests alone upon the testimony of the alleged injured female. Her testimony is uncorroborated, except by the circumstance that she informed her husband of the assault on the evening of the day after said assault was made. Her account of the assault is that it occurred at the defendant's house in the night, after she had gone to bed and was asleep. She was sleeping in the same room with the defendant and his wife. She testified that when she awoke the defendant had unbuttoned and pulled down her drawers, was on top of her, and was performing the act of copulation upon her; that she put her hand upon him, and asked him who it was; and that he then got off her, and went back to his bed. She testified previously before an examining court that all the defendant did was to unbutton and pull down her drawers. She did not then testify that he got upon her, and was having intercourse with her. She made no outcry or alarm; remained at the house the balance of the night; and told no one what had occurred until the next evening, when she told her husband, who had been absent from home during that day, and the night on which she stated the assault occurred. We are of the opinion that this conviction is not warranted by the evidence. It does not appear that the assault, if an assault was in fact committed, was characterized by such force as is required to constitute this offense; that is, such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties, and the other circumstances of the case. Pen. Code, art. 529. It does not appear from the evidence that this character of force was intended to be used by the defendant, and hence he did not act with the specific intent to commit rape. Brown's Case, 27 Tex. App. 330, 11 S. W. Rep. 412. The writer dissents from the holding that, in order to constitute an assault with intent to rape, the character of force defined by article 529 of the Penal Code must be intended to be used by the assailant, but such is now the established law, by the decisions of this court, and this case must be controlled thereby. Conceding that the testimony of the alleged injured...
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Conger v. State
...20 Tex. App. 281; Brown v. State, 27 Tex. App. 330, 11 S. W. 412; Walton v. State, 29 Tex. App. 163, 15 S. W. 646; Passmore v. State, 29 Tex. App. 241, 15 S. W. 286. Many other cases might be cited, but we deem it The fourteenth ground of appellant's motion complains that the court erred in......
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Caldwell v. State
...of the prosecutrix. In support of their argument, they cite Brown v. State, 27 Tex.App. 330, 11 S.W. 412 (1889) and Passmore v. State, 15 S.W. 286 (Tex.Crim.App.1890). We fail to see how these cases support the State's position. Both cases were reversed. They are not rape cases. They are ca......
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Dovalina v. State
...when "kill" is also alleged. In the earlier cases of Shields v. State, 32 Tex.Cr.R. 498, 23 S.W. 893 (1893); Passmore v. State, 29 Tex.App. 241, 15 S.W. 286 (1891), this Court held that the assault must be accompanied with the specific intent to commit rape. Even in light of those holdings ......
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