BROOKS, Judge.
Appellant was indicted and convicted of an assault with intent to rape, and his punishment assessed at five years confinement in the penitentiary.
Prosecutrix testified, in substance, that on December 29, 1899, she started with appellant from a party to her home. They left the party about midnight. Appellant drove rapidly for about half a mile south; then turned west on the road leading by Joe Queen’s house. Appellant said, “I believe I will halloo.” She insisted he should not. “He then asked me to kiss him. I told him I would not do it; that I was not that kind of a girl.” “Appellant had slowed up the team just before he got in the road that runs east by Salyer sehoolhouse and west by Joe Queen’s house, there being a wagon in front of us. The wagon turned east, and we turned west. Some one approached us in a buggy, and defendant said: T wonder what those people want with us. I suppose they want you.’ I replied I guessed they did not want me. The buggy then passed us, and went on out of hearing. Defendant asked me to take the lines and drive, as he wanted to put on his gloves. After putting on his gloves, he again took the lines. He then asked me if I loved him. I told him I loved everybody. He asked me to Jet him have a piece.’ I told him he ought to be ashamed of himself. I was sitting on his left side. He stopped the horse, threw his right arm around me in front,
caught me by the left side with his right hand. He got in front of me between my feet, and pushed my left foot out of the buggy, holding me at the same time pressed against the back of the buggy seat. He pressed his breast against me, and got down on his knees, and ran his left hand up under my clothes, and put his bare hand on my privates. He caught my right leg with his left hand. His pants in front were unbuttoned, but I do not know whether his penis was out of his pants or not. He unbuttoned my drawers, which were buttoned on my right side, and pulled them down in front. He had his right hand around my waist, and had my right leg with his left hand, and was holding me so that I could hardly move. I caught hold of his hands, and tried to hold them, and pushed against his breast with my hands with all my strength. I begged him to quit, and let me alone, and tried to shame him. He said I had just as well give up, as he was going to take it anyway. He used great force, and handled me so roughly as to hurt me. While he had me in the position I have described, he raised my clothes, and pulled my body towards him, and pushed his body towards me. I resisted him with all my strength, and in every way I could, from the time he first took hold of me. During the struggle, I pushed him back against the dashboard of the buggy, and got loose from him, and jumped out of the buggy. When I jumped out of the buggy, I hallooed twice. I cried ‘Oh! Oh!’ twice. I then ran up the-road about fifty yards. Defendant called to me, and I understood him to say that I had just as well come back, as he would catch me before I got home. I heard defendant’s buggy start rapidly, the wheels rattling as if going fast. It was dark,' and I crawled under a barbed wire fence, and went a mile through a thick brush pasture, most of the way without any road, except the last quarter, until I reached by Uncle Zack’s house, and I stopped there, and immediately told my aunt what had happened, and who had done it. My uncle then went home with me, and I told my mother what had occurred. He did not tear my drawers, but simply unbuttoned them.” The above is, in substance, the testimony adduced upon the trial.
Appellant insists that the court’s charge is erroneous in the following portion: “You are instructed that, in order to constitute the offense of an assault with intent to rape, it must be shown by the evidence, beyond a reasonable doubt, that the defendant made an assault upon the person of the witness Beulah Walker as alleged, and that at the time of such assault, if any, the defendant had the specific intent to have carnal knowledge of the said Beulah Walker by force, and without her consent, and that he intended to use such force, if necessary, as would be sufficient to overcome such resistance on the part of Beulah Walker as she should make.” He insists that the charge should have gone further, and stated that the jury must believe from the evidence, beyond a reasonable doubt, that the prosecutrix put forth her utmost efforts to prevent appellant accomplishing his purpose, considering the relative size and strength of the parties, the conditions surrounding them at the
time, and other circumstances of the case. In this appellant is sustained by the case of Mooney v. State, 29 Texas Criminal Appeals, 257. We there held that force on the part of the prosecutrix in resisting to the utmost the effort on.the part of appellant to accomplish the offense is a criterion by which the consent is to be
tested;
for, if no resistance to the carnal act is made by the prosecutrix, the presumption obtains that she consented to the act. The same view is expressed by us in Owens v. State, 39 Texas Criminal Reports, 391. However, article 723, Code of Criminal Procedure, provides, in substance, that we shall not reverse a case unless the error complained of was calculated to injure the rights of appellant. Was this calculated so to do? We think not; since the undisputed evidence shows that the prosecutrix resisted the efforts of appellant successfully, and finally fled from his presence, in the nighttime, to the house of a relative. If there had been any evidence indicating consent on her part, or a lack, rather, of resistance, then a charge of the character insisted upon by appellant’s counsel would have become necessary, and its absence would probably have injured the rights of appellant. But here the prosecutrix has used all the force necessary, since that used by her accomplished all that she sought, i. e., escape from the lascivious embraces of appellant.
The learned judge, among other things, charged the jury as follows: “The definition of force, as applicable to an assault and battery, applies also to the crime of rape; and, in order to constitute rape, the force must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the .parties, and other circumstances of the case. * * * How, if jmu believe from the evidence in this case that the defendant assaulted the said Beulah Walker, as alleged in the indictment, but you have a reasonable doubt whether, at the time of such assault, he intended to have carnal knowledge of the said Beulah Walker without her consent, or have a reasonable doubt whether he intended, if it became necessary, to force compliance with his desires at all events, regardless of any resistance that might be made by said Beulah Walker, then you will find the defendant not guilty of an assault with intent to rape. Unless you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted the said Beulah Walker as alleged, and that at the time of such assault, if any, the defendant intended to have carnal knowledge of her without her consent, and by force, and that he intended, if necessary, to use such degree of force as would be reasonably necessary to overcome any resistance on the part of said Beulah Walker as she could make, taking into consideration the relative strength of the parties and other circumstances of the case, you will acquit the defendant of an assault with intent to rape.
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BROOKS, Judge.
Appellant was indicted and convicted of an assault with intent to rape, and his punishment assessed at five years confinement in the penitentiary.
Prosecutrix testified, in substance, that on December 29, 1899, she started with appellant from a party to her home. They left the party about midnight. Appellant drove rapidly for about half a mile south; then turned west on the road leading by Joe Queen’s house. Appellant said, “I believe I will halloo.” She insisted he should not. “He then asked me to kiss him. I told him I would not do it; that I was not that kind of a girl.” “Appellant had slowed up the team just before he got in the road that runs east by Salyer sehoolhouse and west by Joe Queen’s house, there being a wagon in front of us. The wagon turned east, and we turned west. Some one approached us in a buggy, and defendant said: T wonder what those people want with us. I suppose they want you.’ I replied I guessed they did not want me. The buggy then passed us, and went on out of hearing. Defendant asked me to take the lines and drive, as he wanted to put on his gloves. After putting on his gloves, he again took the lines. He then asked me if I loved him. I told him I loved everybody. He asked me to Jet him have a piece.’ I told him he ought to be ashamed of himself. I was sitting on his left side. He stopped the horse, threw his right arm around me in front,
caught me by the left side with his right hand. He got in front of me between my feet, and pushed my left foot out of the buggy, holding me at the same time pressed against the back of the buggy seat. He pressed his breast against me, and got down on his knees, and ran his left hand up under my clothes, and put his bare hand on my privates. He caught my right leg with his left hand. His pants in front were unbuttoned, but I do not know whether his penis was out of his pants or not. He unbuttoned my drawers, which were buttoned on my right side, and pulled them down in front. He had his right hand around my waist, and had my right leg with his left hand, and was holding me so that I could hardly move. I caught hold of his hands, and tried to hold them, and pushed against his breast with my hands with all my strength. I begged him to quit, and let me alone, and tried to shame him. He said I had just as well give up, as he was going to take it anyway. He used great force, and handled me so roughly as to hurt me. While he had me in the position I have described, he raised my clothes, and pulled my body towards him, and pushed his body towards me. I resisted him with all my strength, and in every way I could, from the time he first took hold of me. During the struggle, I pushed him back against the dashboard of the buggy, and got loose from him, and jumped out of the buggy. When I jumped out of the buggy, I hallooed twice. I cried ‘Oh! Oh!’ twice. I then ran up the-road about fifty yards. Defendant called to me, and I understood him to say that I had just as well come back, as he would catch me before I got home. I heard defendant’s buggy start rapidly, the wheels rattling as if going fast. It was dark,' and I crawled under a barbed wire fence, and went a mile through a thick brush pasture, most of the way without any road, except the last quarter, until I reached by Uncle Zack’s house, and I stopped there, and immediately told my aunt what had happened, and who had done it. My uncle then went home with me, and I told my mother what had occurred. He did not tear my drawers, but simply unbuttoned them.” The above is, in substance, the testimony adduced upon the trial.
Appellant insists that the court’s charge is erroneous in the following portion: “You are instructed that, in order to constitute the offense of an assault with intent to rape, it must be shown by the evidence, beyond a reasonable doubt, that the defendant made an assault upon the person of the witness Beulah Walker as alleged, and that at the time of such assault, if any, the defendant had the specific intent to have carnal knowledge of the said Beulah Walker by force, and without her consent, and that he intended to use such force, if necessary, as would be sufficient to overcome such resistance on the part of Beulah Walker as she should make.” He insists that the charge should have gone further, and stated that the jury must believe from the evidence, beyond a reasonable doubt, that the prosecutrix put forth her utmost efforts to prevent appellant accomplishing his purpose, considering the relative size and strength of the parties, the conditions surrounding them at the
time, and other circumstances of the case. In this appellant is sustained by the case of Mooney v. State, 29 Texas Criminal Appeals, 257. We there held that force on the part of the prosecutrix in resisting to the utmost the effort on.the part of appellant to accomplish the offense is a criterion by which the consent is to be
tested;
for, if no resistance to the carnal act is made by the prosecutrix, the presumption obtains that she consented to the act. The same view is expressed by us in Owens v. State, 39 Texas Criminal Reports, 391. However, article 723, Code of Criminal Procedure, provides, in substance, that we shall not reverse a case unless the error complained of was calculated to injure the rights of appellant. Was this calculated so to do? We think not; since the undisputed evidence shows that the prosecutrix resisted the efforts of appellant successfully, and finally fled from his presence, in the nighttime, to the house of a relative. If there had been any evidence indicating consent on her part, or a lack, rather, of resistance, then a charge of the character insisted upon by appellant’s counsel would have become necessary, and its absence would probably have injured the rights of appellant. But here the prosecutrix has used all the force necessary, since that used by her accomplished all that she sought, i. e., escape from the lascivious embraces of appellant.
The learned judge, among other things, charged the jury as follows: “The definition of force, as applicable to an assault and battery, applies also to the crime of rape; and, in order to constitute rape, the force must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the .parties, and other circumstances of the case. * * * How, if jmu believe from the evidence in this case that the defendant assaulted the said Beulah Walker, as alleged in the indictment, but you have a reasonable doubt whether, at the time of such assault, he intended to have carnal knowledge of the said Beulah Walker without her consent, or have a reasonable doubt whether he intended, if it became necessary, to force compliance with his desires at all events, regardless of any resistance that might be made by said Beulah Walker, then you will find the defendant not guilty of an assault with intent to rape. Unless you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted the said Beulah Walker as alleged, and that at the time of such assault, if any, the defendant intended to have carnal knowledge of her without her consent, and by force, and that he intended, if necessary, to use such degree of force as would be reasonably necessary to overcome any resistance on the part of said Beulah Walker as she could make, taking into consideration the relative strength of the parties and other circumstances of the case, you will acquit the defendant of an assault with intent to rape. If you believe from the evidence the defendant assaulted the said Beulah Walker as alleged, and that he used force to accomplish his purpose, but have a reasonable' doubt whether or not he
intended thereby to force compliance with his purpose in spite of any resistance on her part, or whether he merely intended thereby to obtain the consent of said Beulah Walker to such intercourse, then you will acquit the defendant of the charge of an assault with intent to rape.” In the opinion of the writer, were it an original question, I would hold that these excerpts, taken in connection with the entire charge, would constitute a correct charge on the law; but the whole trend of the decisions is against this position. They hold that there must not only be the specific intent on the part of the appellant to accomplish the purpose, but that there must be such resistance on the part of the prosecutrix as shows the utmost effort on her part to resist the assault, taking in consideration the relative strength and size of the parties and the surrounding circumstances. We therefore hold that the contention so ably insisted upon by appellant in his brief as error is well taken; but in the light of the record before us, as indicated, it is not such error as is calculated to injure the rights "of appellant, since there is no question in this case that prosecutrix used all the force necessary to defeat the appellant’s purpose in the assault committed upon her.
Appellant also insists that the evidence is not sufficient. After a very careful review of the facts, we believe they support the verdict of the jury. The jury have passed upon the sufficiency thereof, and we see no reason for disturbing their finding. The judgment is affirmed.
Affirmed.