Batchelor v. State

55 S.W. 491, 41 Tex. Crim. 501, 1900 Tex. Crim. App. LEXIS 26

Opinion

DAVIDSON, Presiding Judge.

Appellant was convicted of rape upon Laura Batchelor, a female, being then and there under the age of 15 years, and not his wife, and his punishment assessed at confinement in the penitentiary for a term of ninety-nine years. The testimony shows several acts of intercourse between the parties in Hood County, besides some prior acts in another county. When the testimony was all in, appellant moved the court to require the State to elect upon which act of intercourse it would rely for a conviction. This was overruled. This was erroneous. It is true, the court confined the jury in their deliberations to the acts in Hood County, but as stated, there were several of these occurring within the twelve months. Rape is not a continuous offense. Each act of intercourse constitutes a distinct offense. The question involved was thoroughly discussed in Lunn v. State, 44 Texas, 85, and was previously decided in Fisher v. State, 33 Texas, 792. The doctrine announced in these cases has been followed in this State without a variant opinion. Hpon another trial it would be better for the court to limit the effect of those acts not relied upon for conviction. For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.