Payne v. State

• Decision Date: 15 February 1899
• Citation: 49 S.W. 604
• Parties: PAYNE v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 604

PAYNE v. STATE.

Court of Criminal Appeals of Texas.

February 15, 1899.

Appeal from district court, Eastland county; N. R. Lindsey, Judge.

Bunyon Payne was convicted of rape, and he appeals. Affirmed.

J. E. Thomas, for appellant. Robt. A. John, for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at imprisonment in the penitentiary for five years, and he prosecutes this appeal.

This case was before us at a former term of this court, on appeal from Callahan county. See Payne v. State, 43 S. W. 515. The conviction in that case was for rape by fraud. The case was reversed because of a defect in the indictment, and because, in the opinion of the court, the evidence did not sustain the conviction for rape by fraud. A new indictment was found, alleging rape by force. The venue was transferred to Eastland county, and a trial and conviction were had, as before stated. The theory of the state is to the effect that the copulation occurred while the prosecutrix was asleep, and without her consent, or with any reason to believe that she was consenting to the act of copulation. The theory of the defendant was that he copulated with the prosecutrix, not only with her consent, but by her invitation.

Appellant insists that the court committed an error in giving the following charge to the jury: "If, from the evidence, you believe that the defendant did at the time and place alleged in the indictment, and without the consent of Jessie Winn, with his (defendant's) private male organ penetrate the private female organ of the said Jessie Winn; and if you further believe that such penetration, if any, occurred at a time when the said Jessie Winn was asleep, and was without her knowledge,—then, in that event, such penetration, if any, would, in law, be with force sufficient to constitute rape." Appellant insists that this was a charge on the weight of the evidence, in that it singled out the testimony of Mrs. Jessie Winn, and authorized the jury to find a verdict on her evidence alone, and that it substituted another character of force than was provided in the statute. With regard to the first proposition, it nowhere mentions the testimony of Jessie Winn, but, as we understand the charge, presents the theory of the state, predicated on the state's testimony as to the character of force necessary, under the circumstances, to constitute rape. If it be true that this theory is alone based on the testimony of Jessie Winn, we can see no harm in this. As to the second proposition, the question is sharply presented, was it competent for the court to present or define the question of force as was here done? That is, the charge, in effect, instructed the jury that the act of copulation of a male person with a woman, she being asleep at the time, and not consenting, was sufficient force to constitute the offense of rape. Ordinarily the statutory definition of force would be sufficient, but the facts in this case, so far as the state was concerned, raised the direct issue before the jury, as to whether or not a rape could be committed on a woman while she was asleep, she not consenting to the act; and in such case it was entirely proper for the court to instruct the jury as to the required force under such circumstances, and the instruction given was in accord with the authorities on the subject. See Mooney v. State, 29 Tex. App. 257, 15 S. W. 724; Com. v. Burke, 105 Mass. 376; People v. Bartow, 1 Wheeler, Cr. Cas. 378; Walter v. People, 50 Barb. 144; Reg. v. Young, 14 Cox, Cr. Cas. 114; Rex v. Mayers, 12 Cox, Cr. Cas. 311; 1 Whart. Cr. Law, p. 524, § 561, and note. In Mooney v. State, supra, this language is used: "The second position urged by the state is that, `the woman being asleep when penetrated, rape is the result, though no greater force is used than that involved in the act.' We have given this proposition thorough examination. The authorities are quite inharmonious. Apparently there is a serious conflict of opinion upon this subject, but, when carefully scrutinized, the conflict will be found, to a great extent, apparent only. Our researches lead us to these conclusions: if the statute defines rape to be carnal knowledge of a woman by force and `without' her consent, then the proposition above stated is correct. On the other hand, if the statute defines rape to be the carnal knowledge of a woman by force and `against' her consent, then the proposition is not correct. Some cases hold the proposition correct whether the statute says `against' or `without.'" Counsel for appellant, however, insists that this question was not before the court in Mooney's Case. We have examined the decision carefully, and we cannot agree to this. We are not inclined to make the distinction between the terms "without consent" and "against consent" as made in the above case, because we believe there is really, in effect, no difference between the expressions. Rape must be by force and without consent, as is stated by our statute, which really means the same thing as "against consent." If the female is asleep, of course, she cannot give her express consent, but, if she is willing to the act, there is tacit consent, and there need not be express consent; so that in the final analysis the act must be against her will and consent, and the force used is only such force as may be used in the act of copulation. We quote from the case of Reg. v. Young, supra,—a case very similar to this,— as follows: "The evidence proved that the prosecutrix, a married woman, being partially under the influence of drink, on the 2d February, 1878, went to bed in her lodgings in the Seven Dials, with her youngest child, about 9 o'clock. Her husband, with another child, came home about midnight. About 4 o'clock in the morning, when all four were asleep, the prisoner entered the room,— the door not having been locked,—got into bed, in which were the prosecutrix, her husband, and the two children, and proceeded to have connection with the prosecutrix, she being at the time asleep. When she woke, at first, the prosecutrix thought that it was her husband; but, on hearing the prisoner speak, she looked around, and, seeing her husband by her side, she immediately flung the prisoner off her, and called out to her husband. The prisoner ran away, but before he could make his escape he was secured by a police constable. None of the parties had ever seen the prisoner before. In answer to questions put by me, the jury found that the prosecutrix did not consent before, after, or at the time of the prisoner's having connection with her, that it was against her...