Porter v. State

Court of Criminal Appeals of Texas

Porter v. State

26 S.W. 626, 33 Tex. Crim. 385, 1894 Tex. Crim. App. LEXIS 122

CourtCourt of Criminal Appeals of Texas

DecidedMay 19, 1894

DocketNo. 473.

StatusPublished

Cited by3 cases

This text of 26 S.W. 626 (Porter 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

Porter v. State, 26 S.W. 626, 33 Tex. Crim. 385, 1894 Tex. Crim. App. LEXIS 122 (Tex. 1894).

Pincite

Opinion

*387 HTTET, PRESIDING Judge.

This is a conviction for an assault with intent to commit rape. According to tbe testimony of tbe prosecutrix, she and defendant were alone in a street car, tbe driver having left. Defendant asked ber ber name and where she lived. She pretended not to bear him. When be repeated tbe inquiry, she was frightened, and answered. He then made an indecent proposal to ber, to which she replied that she did not understand him. He immediately arose, came across to where she was sitting, took bold of ber by tbe arms, and tried to push ber down on tbe seat of the street car. She shoved him off, ran out of tbe car, ran up tbe track, and called to some people for protection. He followed ber out of tbe car and followed ber up tbe track, calling to ber that, if she would come back, be would do ber no barm. She is 15 years of age. Defendant is a negro boy. Tbe court, in tbe charge to tbe jury, submitted simply tbe issue of assault with intent to rape; that is to say, that tbe jury, under tbe charge, must either acquit or find tbe accused guilty of tbe felonious assault. Tbe charge does not define tbe character or degree of force necessary to constitute rape. The defense asked tbe following charges, which were refused: (1) “In order to find tbe prisoner guilty of an assault with intent to commit rape, you must be satisfied, beyond a reasonable doubt, that tbe prisoner, when be laid hold of tbe prosecutrix, not only desired to gratify bis passions upon ber person, but that he intended to do so at all events, and notwithstanding any resistance on her part.” (2) “If you believe from tbe evidence that tbe defendant did assault tbe said Freda Mink, but you do not believe, beyond a reasonable doubt, that be, under the circumstances, and at tbe time and place, intended to have carnal knowledge of ber at all events, and notwithstanding resistance on ber part, then you will acquit defendant of tbe charge of assault with intent to commit rape, but you may find tbe defendant guilty of assault, and assess bis punishment at a fine.” * * * Tbe defendant reserved a bill to tbe refusal to give these charges.

Tbe requested charge number 1 was the law of this case. Rex v. Lloyd, 7 Car. & P., 318; Rex v. Wright, 4 Fost. & F., 967; Commonwealth v. Merrill, 14 Gray, 415; Reynolds v. The People, 41 How. Pr., 179; Jones v. The State, 53 Ga., 50; The State v. Burgdorf, 53 Mo., 65; Mahoney v. The People, 43 Mich., 39; The State v. Hagerman, 47 Ia., 151; Taylor v. The State, 50 Ga., 79; Brown v. The State, 27 Texas Crim. App., 330; Shields v. The State, 32 Texas Crim. Rep., 498.

Tbe requested charge number 2 was the law of this case. Tbe testimony of the prosecutrix presented for tbe determination of tbe jury tbe issue whether or not tbe accused intended to use that degree of-force we have defined; and, in tbe event that tbe jury believed that such intent did not exist, then defendant would be guilty of a simple assault, if tbe proof shows that be is not an adult. By comparing tbe facts in tbe present case with those in tbe case of Pfefferling v. The State, 40 *388 Texas, 487, it will be found that in tbe latter a much stronger case was made, and we think the opinion of Judge Moore in that case is conclusive of this.

The judgment is reversed and the cause remanded.

Reversed, and demanded.

Judges all present and concurring.

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*387 HTTET, PRESIDING Judge.

This is a conviction for an assault with intent to commit rape. According to tbe testimony of tbe prosecutrix, she and defendant were alone in a street car, tbe driver having left. Defendant asked ber ber name and where she lived. She pretended not to bear him. When be repeated tbe inquiry, she was frightened, and answered. He then made an indecent proposal to ber, to which she replied that she did not understand him. He immediately arose, came across to where she was sitting, took bold of ber by tbe arms, and tried to push ber down on tbe seat of the street car. She shoved him off, ran out of tbe car, ran up tbe track, and called to some people for protection. He followed ber out of tbe car and followed ber up tbe track, calling to ber that, if she would come back, be would do ber no barm. She is 15 years of age. Defendant is a negro boy. Tbe court, in tbe charge to tbe jury, submitted simply tbe issue of assault with intent to rape; that is to say, that tbe jury, under tbe charge, must either acquit or find tbe accused guilty of tbe felonious assault. Tbe charge does not define tbe character or degree of force necessary to constitute rape. The defense asked tbe following charges, which were refused: (1) “In order to find tbe prisoner guilty of an assault with intent to commit rape, you must be satisfied, beyond a reasonable doubt, that tbe prisoner, when be laid hold of tbe prosecutrix, not only desired to gratify bis passions upon ber person, but that he intended to do so at all events, and notwithstanding any resistance on her part.” (2) “If you believe from tbe evidence that tbe defendant did assault tbe said Freda Mink, but you do not believe, beyond a reasonable doubt, that be, under the circumstances, and at tbe time and place, intended to have carnal knowledge of ber at all events, and notwithstanding resistance on ber part, then you will acquit defendant of tbe charge of assault with intent to commit rape, but you may find tbe defendant guilty of assault, and assess bis punishment at a fine.” * * * Tbe defendant reserved a bill to tbe refusal to give these charges.

Tbe requested charge number 1 was the law of this case. Rex v. Lloyd, 7 Car. & P., 318; Rex v. Wright, 4 Fost. & F., 967; Commonwealth v. Merrill, 14 Gray, 415; Reynolds v. The People, 41 How. Pr., 179; Jones v. The State, 53 Ga., 50; The State v. Burgdorf, 53 Mo., 65; Mahoney v. The People, 43 Mich., 39; The State v. Hagerman, 47 Ia., 151; Taylor v. The State, 50 Ga., 79; Brown v. The State, 27 Texas Crim. App., 330; Shields v. The State, 32 Texas Crim. Rep., 498.

Tbe requested charge number 2 was the law of this case. Tbe testimony of the prosecutrix presented for tbe determination of tbe jury tbe issue whether or not tbe accused intended to use that degree of-force we have defined; and, in tbe event that tbe jury believed that such intent did not exist, then defendant would be guilty of a simple assault, if tbe proof shows that be is not an adult. By comparing tbe facts in tbe present case with those in tbe case of Pfefferling v. The State, 40 *388 Texas, 487, it will be found that in tbe latter a much stronger case was made, and we think the opinion of Judge Moore in that case is conclusive of this.

The judgment is reversed and the cause remanded.

Reversed, and demanded.

Judges all present and concurring.

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26 S.W. 626, 33 Tex. Crim. 385, 1894 Tex. Crim. App. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-state-texcrimapp-1894.

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