Schroeder v. State

• Decision Date: 17 May 1922
• Docket Number: (No. 6799.)
• Citation: 241 S.W. 169
• Parties: SCHROEDER v. STATE.
• Court: Texas Court of Criminal Appeals

241 S.W. 169

SCHROEDER v. STATE.

(No. 6799.)

Court of Criminal Appeals of Texas.

May 17, 1922.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

J. E. Schroeder was convicted of assault with intent to rape, and he appeals. Reversed.

Styles, Krause & Erickson, of Bay City, A. E. Masterson and A. R. Rucks, both of Angleton, and Love, Wagner & Wagner, of Houston, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for assault with intent to rape; punishment fixed at confinement in the penitentiary for a period of two years.

In the indictment, it is charged:

That the appellant "* * * did then and there unlawfully in and upon Rada Bowers, a female, then and there under the age of eighteen years, and other than the wife of the said J. E. Schroeder, did make an assault and did then and there by force and without her consent attempt to ravish and have carnal knowledge of the said Rada Bowers against the peace and dignity of the state."

Our statute defining rape does not create two offenses. If the assault be committed upon a woman above the age of 18 years, it must be by force, threats, or fraud. If upon a female under the age of 18 years, it is rape whether with or without consent, and with or without the use of force, threats, or fraud. Penal Code, art. 1063. The averment in the indictment that the carnal knowledge was had by force, and without the consent of the prosecutrix, did not render it duplicitous, nor otherwise render the indictment inadequate. In the definition of assault with intent to rape, it is said:

"If any person shall assault a woman with intent to commit the offense of rape, he shall be punished," etc. Pen. Code, art. 1029.

The offense of rape includes within it the assault with intent to rape. Code Cr. Proc. art. 772, subd. 12.

That prosecution for the offense of assault with intent to rape may be maintained under the statutes of this state upon facts showing that the injured party gave her consent, and that no force was used when she is under the age of 18 years, may be considered settled by the previous decisions of this court.

In an indictment for assault with intent to rape upon a female under the age of 18 years, it is not necessary to charge that force was used. The mere fact that there was an assault with intent to have carnal knowledge of a female under the age of 18 years would be a sufficient description. Nicholas v. State, 23 Tex. Cr. App. 327, 5 S. W. 239; Cromeans v. State, 59 Tex. Cr. R. 617, 129 S. W. 1129; Buchanan v. State, 41 Tex. Cr. R. 129, 52 S. W. 769.

The term "woman" in the statute defining assault with intent to rape (article 1029 of the Penal Code) includes a female under the age of 18 years. This is specifically stated in Cromeans v. State, supra. It follows, therefore, that the indictment in the instant case charged an assault with intent to rape upon Rada Bowers, a woman, and is not, therefore, duplicitous. Treating it as a charge of assault to rape upon a woman, the averment that the injured party was under 18 years may be treated as surplusage. It is not descriptive of an assault with intent to rape by force, threats, or fraud. Nicholas v. State, supra. Not being descriptive, they may be disregarded. Branch's Ann. Texas Penal Code, § 508.

In submitting the case to the jury, the court proceeded upon the theory that there might be a conviction of assault with intent to rape under the indictment, although there was no intent to have carnal knowledge with the prosecutrix without her consent, and no force used to subject her to his will without her consent. This character of charge would have been appropriate under a different averment in the indictment, but it does not conform to the offense charged, which, to quote the indictment, was "an assault to then and there, by force and without her consent, ravish her." This conclusion may be somewhat at variance with the opinion in the case of Buchanan v. State, 41 Tex. Cr. R. 132, 52 S. W. 769. If so, that case is out of harmony with others of earlier and later dates. For example, in the Cromeans' Case it is said:

"Rape on a girl is with or without her consent, and with or without the use of force, and an indictment for such offense need not allege force (but if force is alleged it must be proved)."

The case of Morgan v. State (Tex. Cr. App.) 50 S. W. 718, was one in which the prosecution was for assault with the intent to rape. The court said:

"The indictment is in two counts. Both counts charge an assault with intent to commit rape by force, and without the consent of the prosecutrix. The fact that the prosecutrix is alleged to be under the age of 15 years thus becomes immaterial, for, in any event, in order to sustain a conviction, the allegation of force charged in the indictment was required to be proved. The court, in its charge, as seen above, presented a case of rape without force upon the prosecutrix, with the intent to have carnal knowledge of her, she being at the time under the age of 15 years, and not the wife of defendant. This is not the case presented in the indictment, for, as we have seen under it, the state could only procure a conviction by the use of force, and against the consent of the female."

In the Jenkins' Case, 34 Tex. Cr. R. 201, 29 S. W. 1078, the charge was rape. There was a conviction of that offense. The indictment read.

"* * * That the defendant, Jim Jenkins, made an assault on Nannie Mathews, and that by force, threats, and fraud, and without the consent of the said Nannie Mathews, he did then and there ravish and have carnal knowledge of her."

She was 11 years of age at the time. The court instructed the jury that, if they found that the prosecutrix was under 12 years of age at the time the offense of rape was charged to have been committed, and if they further find from the evidence, beyond a reasonable doubt, that the defendant had carnal knowledge of the said Nannie Mathews, to convict. The court also charged that, if she was over 12 years of age, and defendant had carnal knowledge of her without her consent, and by force, to find him guilty. The court said:

"While it would be permissible to show that the prosecutrix was under the age of consent, yet in order to sustain the charge a rape by force must be shown, and nothing less than this would suffice to sustain the allegation of the indictment. Nicholas v. State, 23 Texas Crim. App. 317; Moore v. The State, 20 Texas Crim. App. 275. In this case, however, the jury were instructed, if...