White v. State

• Decision Date: 07 January 1931
• Docket Number: No. 13520.,13520.
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W.2d 286

WHITE v. STATE.

No. 13520.

Court of Criminal Appeals of Texas.

January 7, 1931.

Appeal from District Court, Angelina County; W. O. Seale, Special Judge.

Charlton White was convicted of rape, and he appeals.

Reversed and remanded.

E. J. Conn, of Lufkin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, P. J.

The offense is rape; penalty, confinement in the penitentiary for a period of thirty years.

From the testimony of the state, the following in substance appears: Mrs. Minnie Wood was thirty-one years of age and long a resident of the community. She had been married and was the mother of three children, the oldest being ten years old. After she had retired in the night, there came to her home Bob Lester, Dock Brown, and Charlton White, the appellant. Against her will and while she was resisting, she was conducted by the persons named above to a place in the woods near her home. Upon threats made by Lester, she removed her dress and underclothes, and Lester had sexual intercourse with her. She made outcry and her assailants departed. Lester alone indulged in the act of intercourse.

The appellant's theory, arising from his testimony and that of others, is illustrated by the following synopsis. He was twenty years of age and uneducated. He was requested by Lester to go to the home of the prosecutrix. He objected at first upon the ground that he was related to her, but finally agreed to accompany Lester and Brown to the house in which the prosecutrix lived; that the prosecutrix went with Lester to the woods to fill a date, but, upon discovering the appellant, she made outcry and he departed.

The court instructed the jury upon the law of principals and embraced in paragraphs 8 and 9 the definition of the law of principals in substantial accord with the statutory provisions found in chapter 1, title 3, Rev. Cr. Stat. 1925, p. 12. The application of the law to the facts was embraced in paragraphs 11 and 12. The criticism of the court's charge embraced the proposition that there was a failure to properly apply the law of principals to the facts in hand. In attempting to make such application, the jury was instructed in substance that the mere presence of the accused would not constitute him a principal, and in paragraph 11 of the charge the following language is used: "Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, either alone or acting together with Dock Brown and Bob Lester, or either of them, as principals, as that term has hereinbefore been explained to you, did, as charged in the indictment, on or about the time alleged in the indictment, in the County of Angelina, and State of Texas, make an assault in and upon the said Minnie Wood, a woman, and that the said Bob Lester, did, then and there, by means of force and threats, violently ravish and have carnal knowledge of her, the said Minnie Wood," etc.

Without asserting that, considered as a whole, the charge of the court was defective to a degree that would require a reversal, it will be stated that in the particular mentioned the charge is not deemed accurate. If there be another trial, the jury should be instructed in such manner that they will understand that the appellant could not become a principal in the rape unless a rape was committed by Bob Lester, and in appropriate language the jury should be told that, if they believed, beyond a reasonable doubt, that Minnie Wood was raped by Bob Lester, and the appellant, being present and knowing of the unlawful intent and purpose of Bob Lester, aided or encouraged him, he would be a principal offender.

Specific objection was made to the failure of the court to charge upon the law of aggravated assault. Such an instruction should have been given.

There is testimony from which the jury might have concluded that no rape or copulation took place during the presence of the accused. The evidence from his standpoint presents the theory that, before going to the vicinity of the home of the prosecutrix, the appellant was aware that the prosecutrix had extended sexual favors to others and was informed by Lester that he had a date with the prosecutrix to have such intercourse with her consent; that on reaching her home the appellant's presence was not disclosed to her, but he was near enough to hear a conversation with Lester in which the prosecutrix consented to go with him and Brown for the purpose of sexual relations; that appellant went into the woods and without compulsion by him the prosecutrix came with Lester and Brown to the woods and was making arrangement of her apparel and position for the act when she discovered the appellant's presence near a tree; that she immediately began to scream and the appellant left; that no act of intercourse took place in his presence. From the state' standpoint, the appellant was present and took part in...