Schroeder v. State

• Decision Date: 10 June 1896
• Citation: 36 S.W. 94
• Parties: SCHROEDER v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 94

SCHROEDER v. STATE.

Court of Criminal Appeals of Texas.

June 10, 1896.

Appeal from district court, Washington county; Ed. R. Sinks, Judge.

Julius Schroeder appeals from a conviction. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of an assault with intent to rape, and given 15 years in the penitentiary, and prosecutes this appeal.

1. There is only one bill of exceptions in the record. Appellant excepted to the remarks of the district attorney in his concluding argument to the jury, in which he characterized the defendant as a "hyena" three times. The court approved said bill, with the explanation that as soon as the defendant objected to said expressions he stopped the district attorney, and then and there withdrew said expressions from the jury, and instructed them not to consider the same. It is always improper to travel out of the record, and denounce a defendant by applying to him epithets, and the court should restrain this practice without even being appealed to. The epithet applied in this case was exceedingly improper, but it is not shown that it prejudiced the appellant and it is shown that as soon as the court's attention was called thereto he promptly stopped the district attorney, and verbally instructed the jury to disregard the same. If the appellant desired any further instructions to the jury in that regard, it was his duty to prepare and present the same in writing to the court, for submission to the jury.

2. Appellant, in his motion for a new trial, urged that the court committed an error in the following portion of the charge: "If you believe from the evidence that the defendant committed an assault upon the said Emma Kess, and that when he did so (if he did) he did not have the intent by force (as that term is defined in paragraph two of this charge) to have carnal knowledge of said Emma Kess without her consent, or that he had the intent to have carnal knowledge of the said Emma Kess with her consent, then, and in either case, you will acquit the defendant of assault with intent to rape." This charge was advantageous to the appellant, and presented the theory of the defense, to wit, that the defendant never did have the specific intent to commit a rape by force. This charge covered both phases of the defense relied on by appellant, —that is, in the first place, if the defendant, although he committed an assault upon said Emma Kess, did not have at the time the ulterior intent to have...