Warren v. State

• Decision Date: 26 June 1897
• Citation: 41 S.W. 635
• Parties: WARREN v. STATE.
• Court: Texas Court of Criminal Appeals

41 S.W. 635

WARREN v. STATE.

Court of Criminal Appeals of Texas.

June 26, 1897.

Appeal from district court, Smith county; A. B. Watkins, Special Judge.

R. B. Warren appeals from a conviction of an attempt to commit rape. Reversed.

Duncan & Jones, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of an attempt to commit a rape upon Bell Beauchamp, and his punishment assessed at seven years in the penitentiary; hence this appeal.

There are two counts in the indictment. The count which charges the rape alleges that Bell Beauchamp was under the age of 15 years. The second count is for assault with intent to rape Bell Beauchamp, it not being alleged that the assaulted party, Bell Beauchamp, was under the age of 15 years. The assault is alleged to have been made with force, threats, and fraud, and without the consent of Bell Beauchamp. After the testimony was introduced, the court instructed the jury as follows: "Rape is defined by law, among other things, `as the carnal knowledge of a female under the age of fifteen years, other than the wife of the person, with or without her consent, and with or without the use of force, threats, or fraud.' The charge of rape included the offense of an attempt to commit rape. If the jury believe from the evidence beyond a reasonable doubt that Bell Beauchamp was, on the day alleged below, under fifteen years of age, then you will not further consider whether or not she was willing and consenting to carnal intercourse with defendant, or whether or not force, threats, or fraud was used by defendant; but if, in addition thereto, you further find, beyond a reasonable doubt, that defendant Dr. R. B. Warren, in the county of Smith, and state of Texas, on the 7th day of March, 1896, and prior to the filing of the indictment herein, did attempt to have carnal knowledge of said Bell Beauchamp, then you will find the defendant guilty of an attempt to commit a rape, and will assess his punishment at confinement in the penitentiary for any term of years, not less than two." Counsel for appellant requested the court to instruct the jury as follows: "You are further charged that before you can convict the defendant of an attempt to commit rape you must believe from the evidence, beyond a reasonable doubt, that he sought to have carnal connection with the prosecutrix by the use of force, but not such force as to bring the offense within the definition of an assault with intent to commit rape, as defined in the main charge, and if you should not believe such force was used, then you will acquit the defendant, or find him guilty of aggravated assault, in case you find that the offense, if any, comes within the definition of that offense, as defined in the main charge." This instruction was refused by the court. Appellant was convicted of an attempt to rape the prosecutrix. Counsel for appellant complains of the charge of the court given, and also insists that the requested instruction should have been given. We must test the charge of the court by the law of the case. At common law a party could be convicted for an attempt to commit a felony, the punishment being fixed either by common law or by act of parliament, graded by the character of the offense attempted. Article 3 of our Penal Code of 1895 provides: "In order that the system of penal laws in force in this state may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense and the penalty affixed thereto by the written law of this state." Article 1 provides that "the design of enacting this Code is to define in plain language every offense against the laws of this state, and affix to each offense its proper punishment." It has done so. We have no law in this state providing or declaring in these words "that an attempt to commit rape is an offense." If we had such an act, merely declaring that an attempt to commit rape would be an offense, with the punishment affixed thereto, we might then conclude that if a party was guilty of attempting to have carnal knowledge of a girl under 15 years of age, with her consent, that, as the consummated crime would be rape, therefore he would be guilty of an attempt to commit rape. But we have no such act. Therefore appellant must be convicted under...