Dockery v. State

Court of Criminal Appeals of Texas

Dockery v. State

34 S.W. 281, 35 Tex. Crim. 487, 1896 Tex. Crim. App. LEXIS 47

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 26, 1896

DocketNo. 984.

StatusPublished

Cited by18 cases

This text of 34 S.W. 281 (Dockery v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dockery v. State, 34 S.W. 281, 35 Tex. Crim. 487, 1896 Tex. Crim. App. LEXIS 47 (Tex. 1896).

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Opinion

HURT, Presiding Judge.

Appellant was convicted of an assault with intent to rape, and his punishment assessed at three years’ confinement in the penitentiary, and prosecutes this appeal. A very remarkable. procedure was had in this case, without any authority in law. It appears that the wife of the defendant was before the grand jury as a witness for the prosecution. This offense is not of that character as would permit the wife to become a witness against the husband. Coun- • sel for appellant, because of the fact that the wife was a witness before the grand jury to procure the bill, moved to set aside the bill. This motion was overruled. In this there was no error. We cannot look behind the return of the grand jury, and set aside an indictment because improper evidence has been received, or testimony of witnesses taken .who were not competent to testify in the case. To constitute the offense *490 of an assault with intent to commit rape, it must appear from the evidence, beyond a reasonable doubt, and to this court with reasonable certainty, that the accused intended, if it became necessary, to force compliance with his desires at all events, and regardless of any resistance-made by his victim. See Rex. v. Lloyd, 7 Car. & P., 316; Reg. v. Wright, 4 Fost. & F., 967; Com. v. Merrill, 14 Gray, 415; Reynolds v. People, 41 How. Prac., 179; Joice v. State, 53 Ga., 50; State v. Burgdorf, 53 Mo., 65; Mahoney v. People, 43 Mich., 39; 4 N. W., 546; State v. Hagerman, 47 Iowa, 151; Taylor v. State, 50 Ga., 79; Brown v. State, 27 Tex. Crim. App., 330; Shields v. State, 32 Tex. Crim. Rep., 498. The question before us is, whether the testimony in this case fills the measure of proof in this particular. We are of the opinion that it does not, and therefore the motion for a new trial, upon the ground of the-insufficiency of the testimony, should have been sustained. The judgment is reversed, and the cause remanded.

. Reversed and Remanded.

Davidson, Judge, absent.

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HURT, Presiding Judge.

Appellant was convicted of an assault with intent to rape, and his punishment assessed at three years’ confinement in the penitentiary, and prosecutes this appeal. A very remarkable. procedure was had in this case, without any authority in law. It appears that the wife of the defendant was before the grand jury as a witness for the prosecution. This offense is not of that character as would permit the wife to become a witness against the husband. Coun- • sel for appellant, because of the fact that the wife was a witness before the grand jury to procure the bill, moved to set aside the bill. This motion was overruled. In this there was no error. We cannot look behind the return of the grand jury, and set aside an indictment because improper evidence has been received, or testimony of witnesses taken .who were not competent to testify in the case. To constitute the offense *490 of an assault with intent to commit rape, it must appear from the evidence, beyond a reasonable doubt, and to this court with reasonable certainty, that the accused intended, if it became necessary, to force compliance with his desires at all events, and regardless of any resistance-made by his victim. See Rex. v. Lloyd, 7 Car. & P., 316; Reg. v. Wright, 4 Fost. & F., 967; Com. v. Merrill, 14 Gray, 415; Reynolds v. People, 41 How. Prac., 179; Joice v. State, 53 Ga., 50; State v. Burgdorf, 53 Mo., 65; Mahoney v. People, 43 Mich., 39; 4 N. W., 546; State v. Hagerman, 47 Iowa, 151; Taylor v. State, 50 Ga., 79; Brown v. State, 27 Tex. Crim. App., 330; Shields v. State, 32 Tex. Crim. Rep., 498. The question before us is, whether the testimony in this case fills the measure of proof in this particular. We are of the opinion that it does not, and therefore the motion for a new trial, upon the ground of the-insufficiency of the testimony, should have been sustained. The judgment is reversed, and the cause remanded.

. Reversed and Remanded.

Davidson, Judge, absent.

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34 S.W. 281, 35 Tex. Crim. 487, 1896 Tex. Crim. App. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dockery-v-state-texcrimapp-1896.

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