Shell v. State

• Decision Date: 23 December 1896
• Citation: 38 S.W. 207
• Parties: SHELL v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W. 207

SHELL v. STATE.

Court of Criminal Appeals of Texas.

December 23, 1896.

Appeal from district court, Robertson county; W. O. Campbell, Special Judge.

Dick Shell was convicted of assault with intent to rape, and appeals. Reversed.

Simmons & Crawford, for appellant. Mann Trice, for the State.

HURT, P. J.

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

There are two counts in the indictment, one charging appellant with an assault with intent to rape Clara Sliwinski by force and without her consent, and the second count charging appellant with an assault with intent to rape said Clara Sliwinski, a female under the age of 15 years. The conviction was general, and can be applied to either count. With reference to the second count, we would observe that it was the duty of the state to prove, before the jury, beyond a reasonable doubt, that the prosecutrix was under the age of 15 years at the time of the alleged assault. She testifies that she was past the age of 15 years on the 23d day of June, 1896, when the assault is alleged to have been committed. Her mother testifies that she was then not 15 years of age, and did not become so until the 10th of August, which was after the alleged assault. Neither of the witnesses furnish any data, both saying that they did not know the year in which the prosecutrix was born, and could give no definite information as to the date of her birth. The mother stated that she had put the age of the prosecutrix, as well as the age of the other children, down in a book, but it had been destroyed by fire a year or so previous, and that the prosecutrix knew her own age as well as she did. We are not informed upon which count appellant was convicted. He may have been convicted on that count charging the nonage of the prosecutrix, or he may have been convicted on the count charging the assault to have been made with force without the consent of the prosecutrix. If the conviction was upon the second count (the nonage count), we do not believe it is supported by the testimony. We might be willing to sanction the verdict of the jury upon the first count in the indictment if the charge of the court had been sufficiently full and explicit in regard to a certain matter.

One of the theories of appellant was that, the alleged assault having occurred at night, he mistook the prosecutrix for her older sister, who was a lewd woman, and with whom he intended to have carnal intercourse with her consent, and that, when he discovered that it was not the sister of Clara, the prosecutrix, whom he knew, he desisted from his purpose to have carnal intercourse with her. There was testimony in the case tending to support this theory. On this subject the charge of the court was as follows: "You are charged that...