Childress v. State

103 S.W. 864, 51 Tex. Crim. 455, 1907 Tex. Crim. App. LEXIS 175

Opinions

HEFDERSOH, Judge.

Appellant was convicted of rape, and his punishment assessed at death; and prosecutes this appeal.

A summary of the facts shows that appellant was married to the mother of the prosecutrix, the latter being his stepdaughter, and at the time of the alleged rape a little over 10 years of age. On the night in question the family, consisting of appellant’s wife, and a Mrs. Hudson, who was boarding with appellant and his wife, had gone to the theatre, leaving appellant and prosecutrix and a little boy some 7 years old, the brother of prosecutrix, together with a young babe, the offspring of appellant and his wife, at the home of the latter. There is some testimony tending to show that appellant on said night induced his wife and Mrs. Hudson to go to the theatre, thus making an opportunity for his purpose. After they had gone appellant had prosecutrix to get in bed with him, and she says that he had intercourse with her and penetrated her person. Prosecutrix relates the transaction in substance as follows: She says appellant locked the doors, and went to bed, and she kissed him good-night, and he told her to get in bed with him, and she was afraid to say no because there was no one in the house but the babe and the little brother, and the doors were locked; that appellant kinder got on his knees and pulled her up to him; put her arms around his neck and her legs around his body, and put his penis in her privates, and pulled her down to him, and it hurt her awful bad and when she commenced to cry he just stuck it in real hard. She did not tell her' mother when she came back that night, but the next morning she was unable to go to school and her mother asked her what was the matter with her, and she told her. Physicians were sent for who examined her parts, and one of them relates that he found the vulva very tender, and the nymphas, the two lips, were swollen and tender; upon separating the lips, the mucus membranes inside of the lips were red and swollen and very tender, and the mucus covering of the entrance to the canal, the vagina, which is called the hymen, was intact, but it was red and inflamed and had a number of lacerations on it, little bruises and cuts. The physician stated that the only lacerations he noticed were on the hymen; he placed this about half an inch inside of the lips; that the parts would have to be penetrated inside of the lips to reach the hymen. On appellant’s "arrest, which occurred the next day, the officer who arrested him, states that he warned him, and that he then asked appellant what happened at his house the night previous after his wife left to go to the opera house, and he replied: “I guess you ought to know; my wife has telephoned you, hasn’t she?” and he then asked appellant if he had had intercourse with the little child, and he said no, he had not, that he had simply put his penis against her privates to get his gun off; that he did not state whether he had entered her vagina or not; that he stated he did not think he did, and the officer told him “You hurt her any way,” to which he replied, “I might have pulled up against her harder than I intended to.” This is a sufficient statement of the case to present the assignments.

There are no bills of exception to the admission or rejection of testimony. Appellant assigns as error the action of the court in charging the jury if they failed to find appellant guilty of rape, then to find him guilty of an assault with intent to rape on his plea of guilty to that offense, the contention being that said plea of guilty to assault with intent to rape is defective, because in the warning or admonition given by the court under article 554, Code Criminal Procedure, same is defective in omitting to include with the other provisions of said section the language “by any persuasion.” The language of said statute is as follows: “If the defendant plead guilty he shall be admonished by the court of the consequences; and no such plea shall be received unless it plainly appear that he is sane, and is uninfluenced by any consideration of fear, by any persuasion, or delusive hope of pardon prompting him to confess his guilt.” Now, the record shows that from the above was omitted by the court in its admonition the expression above stated, to wit: “By any persuasion.” On account of this omission it is contended that said warning was insufficient, and that the plea based thereon was improper, and would not afford the basis for a conviction, or a charge of the court thereon authorizing a conviction. The record shows in this regard that while appellant entered a plea of guilty, that the State refused to receive said plea, or to agree thereto, but proceeded with the trial and insisted on a conviction for rape and introduced evidence accordingly, and that the jury did convict appellant for rape, not acceding to his desire to be convicted for a less offense. Now, the question here presented is, was the action of the court with reference to appellant’s plea calculated to injuriously affect appellant, even if it be conceded that same was defective in not embracing all of the terms of the statute on the subject. We are cited to a number of cases which establish the doctrine that the admonition provided by statute must be strictly conformed to. See Wallace v. State, 10 Texas Crim. App., 407; Frosh v. State, 11 Texas Crim. App., 280; Harris v. State, 17 Texas Crim. App., 559; Paul v. State, 17 Texas Crim. App., 583; Turner v. State, 17 Texas Crim. App., 587; Sanders v. State, 18 Texas Crim. App., 372; Evers v. State, 32 Texas Crim. Rep., 283, and Coleman v. State, 35 Texas Crim. Rep., 404. An examination of these cases will show that the legality of the admonition was directly involved; that is, the conviction in such cases was upon a plea of guilty, and there was no admonition at all, or it was not complete in accordance with the statute. We think it is sound doctrine as recognized by said cases that where a conviction is predicated on a plea of guilty, that the admonition must be in accordance with the statute, and the record must show this, and especially where there is some controversy as to the terms of said plea, or as to whether or not appellant was influenced by any of the considerations enumerated in the statute. In this case, however, as stated above, appellant made no controversy as to his plea, but was more than willing for it .to be accepted by the State. The State did not accept it, but as stated above proceeded to try him for the rape. It is contended, however, that in the trial for rape this defective plea under the charge of the court injuriously affected appellant in regard to his intent, because the jury were told in case they did not find appellant guilty of rape, to find him guilty of an assault with intent to rape, and that this instruction was tantamount to .telling the jury that appellant had admitted his intent to commit rape, and appellant says this injury is made apparent because the State produced the testimony of the officer who arrested appellant, and his relation of the statement of appellant to him would suggest that appellant did not intend to penetrate the prosecutrix, because he says that if he hurt her he must have pulled her down to him harder than he intended. Of course, if there was a serious controversy in this case about appellant’s intent in the assault, then it is possible such a charge might be calculated to injure appellant in the trial for rape on the question of intent, but looking at this record it does not occur to us that this question is in the case. The jury found that appellant penetrated with his male organ the parts of the prosecutrix, and in the face of this record no one can doubt that their finding is sustained. The law makes penetration of a female under 15 years old rape, and it is no defense, when this is shown, for defendant to say that he did not intend to make an entry. Where the question is merely one of assault with intent to rape, the rule would be different, but here we have a completed rape, established by incontrovertible proof, and appellant’s intent, under the circumstances, is entitled to no consideration; but that he did intend it must be manifest from this excerpt taken from his statement to the officer. The mere fact that he penetrated her further than he intended is of no consequence.- It was not necessary in order for him to be guilty of the offense of assault with intent to rape that he make any entry at all, nor is it necessary in rape that he lacerate and destroy the hymen that is situated within the lips of the nymphae: and it does not require that the hymen of the victim be destroyed, or what is called complete entry be made. We fail to see what possible injury the charge of the court on assault with intent to rapé could have done appellant.

As to other transactions, there is some testimony suggesting that appellant had tampered with the prosecutrix previously, but there is no testimony aside from the evidence in this case showing a distinct transaction amounting to an offense. No objection was made to the testimony and no request made of the court to confine the jury to any one transaction, and there was no error because the court failed to limit said testimony.

As to the prosecutrix testifying in this case, there was no objection made to her testimony, or to her qualification as a witness. If there was an error of the court in permitting her to testify, this should have been saved by timely objection, and an exception taken to the action of the court. We do not understand the issue as to her qualification being in the case.

There being no errors in the record, the judgment is affirmed.

Affirmed.