Small v. State
| Decision Date | 07 April 1971 |
| Docket Number | No. 43617,43617 |
| Parties | Glen Alan SMALL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
T. M. Reid, Abilene, for appellant.
Ed Paynter, Dist. Atty., and Britt Thurman, Asst. Dist. Atty., Abilene, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for assault with intent to commit rape with the punishment being assessed at five years by the court following a verdict of guilty.
In his first ground of error appellant urges without citation of authority that the indictment is fatally defective since it did not allege that he had the 'specific' intent to commit rape. The indictment in part alleged that the appellant 'did then and there unlawfully in and upon R A , a woman, make an assault, with the intent then and there to commit the offense of rape upon the said R A * * *.' We find no merit in appellant's contention.
We do observe that the careful trial judge required the jury in his charge to find beyond a reasonable doubt that appellant had made an assault 'with the specific intent then and there to have carnal knowledge of the said R A by force and without her consent and against her will * * *' before they could convict him of the charge in the indictment.
Ground of error #1 is overruled.
Next appellant contends the court should have submitted only the charge of aggravated assault for the evidence was insufficient to submit assault with intent to commit rape.
The prosecutrix testified that in the city of Abilene at approximately 10 p.m. on August 7, u969, she was driving home after visiting a friend when she noticed someone following her in a Rambler automobile, flashing the headlights of such vehicle. She related that the Rambler then curbed her Mustang automobile making it necessary for her to stop. She identified the appellant as the Negro man who got out of the Rambler wearing fatigue pants and who 'didn't have a shirt on or anything' and came to her car where she 'could tell by the smell he had been drinking.' After asking where she was going and if she was married, the appellant told the prosecutrix to get out of her car. When she refused he slapped her and then hit her with his closed fist. She left the automobile only after the appellant placed a knife to her throat and took her by the arm. He then threw her onto the front seat of his car and got in on top of the prosecutrix, placing his body between her legs and putting the weight of his body on her and causing her blouse to come open in the back.
She later testified the appellant 'crawled up between' her legs, and she 'was in an awkward position because one leg was on the seat and one was in the floorboard and he was on top of me.' She related she 'was scared that he was going to rape me' and she did not scream or holler while being transported between the cars because he had hit her twice and she 'didn't think he would much think about using the knife if' she 'started to scream or run or something.'
Seeing the headlights of an approaching vehicle the prosecutrix related she told the appellant she would go with him, but 'that he had better go back and turn the headlights off on my car which I had left burning.' When he departed on such errand the prosecutrix ran screaming towards the oncoming automobile. The appellant then left the scene in his car.
Two airmen corroborated prosecutrix's testimony as to her screaming approach to their vehicle; that she was shaking and nervous and that a Negro man drove off in a car which had been parked at an angle blocking a Mustang automobile.
At the time of appellant's arrest the next morning an open knife was found in his car.
In his testimony appellant denied the offense or remembering any such incident. He related that before he left the Air Force Base where he was stationed that night he had been drinking beer, bourbon, gin, wine, rum and had taken three 'redibird' or seconal pills.
Appellant urges that since the State's evidence does not reflect a statement that...
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