Taylor v. State

• Decision Date: 11 June 1902
• Citation: 69 S.W. 149
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Criminal Appeals

69 S.W. 149

TAYLOR v. STATE.

Court of Criminal Appeals of Texas.

June 11, 1902.

Appeal from district court, Jefferson county; J. D. Martin, Judge.

Gus Taylor was convicted of an attempt to commit rape, and he appeals. Reversed.

W. E. Miller, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of an attempt to commit rape, and given two years in the penitentiary.

Omitting formal portions, the charging part of the indictment is as follows, to wit: That Gus Taylor "* * * did then and there unlawfully make an assault in and upon the person of one Pearl Neylond, a female under the age of fifteen years, and, not being the wife of him, the said Gus Taylor, did then and there attempt to ravish and have carnal knowledge of the said Pearl Neylond, against the peace and dignity of the state." Motion to quash the indictment was overruled. It will be observed that this indictment charges that the assault was made upon the person of Pearl Neylond, and by means of this assault an attempt was made to ravish and have carnal knowledge of her. Under the authorities, this seems to be sufficient to charge an assault with intent to commit rape. The use of the word "attempt" is equivalent to charging an intent. Curry v. State, 4 Tex. App. 574; Mayo v. State, 7 Tex. App. 342; Atkinson v. State (Tex. Cr. App.) 30 S. W. 1064; Hart v. State, 38 Tex. 383. Of course, this is not a sufficient charge upon which to predicate the offense of attempt to rape, because the very definition, under article 640, White's Ann. Pen. Code, excludes, in an attempt to rape, the question of assault. As an indictment for attempt to rape, it would not be sufficient; but, under the authorities above, it sufficiently charges an assault with intent to commit rape.

The court, in his charge, defined an assault with intent to commit rape, and then submitted alone the issue, for the determination of the jury, of attempt to commit the crime of rape. Under an indictment charging an assault to rape, an accused cannot be convicted of an attempt to rape. White's Ann. Pen. Code, § 1052. Nor does the evidence support the crime of attempt to rape. Appellant was the stepfather of the girl. She was under 15 years of age. On the night of the alleged crime, he took prosecutrix and her little sister from home along the streets of Beaumont, and made them drunk: prosecutrix being very drunk. He finally carried them near the bank of the river, and while the...