Hurt, Judge.
On the fourth day of September, A. D. 1883, appellant was placed on trial for the rape of Emma Clark, and was found guilty, with fifty years confinement in the penitentiary as the punishment.
On the seventh day of the same month appellant was tried for the rape of Amanda Clark, and found guilty, the jury assessing the death penalty.
From the judgments rendered on these verdicts the appellant brings the causes to this court by appeal.
Emma and Amanda Clark are sisters. At the time of the supposed rape of Emma she was about fifteen years old; and at the time of the rape on Amanda, she was thirteen years of age.
In almost all of the legal aspects, these causes, as presented by the record, are similar. They differ in the ages of the girls, and in the fact that there was evidence tending to show greater [185]*185force in the Emma case; and the charge of the court in the Emma case contains instructions relative to both the means by which the rape is alleged to have been effected, while that in the Amanda case seeks to confine the jury to threats only. The indictments allege that the rapes were effected by force and threats. All of the questions raised in the first case are presented in the last, and hence a disposition of the last will dispose of the first.
The means used to effect the rape is alleged by the indictment to have been force and threats. These means are set forth in the same count, there being but one count in the indictment. Defendant moved that the State be required to elect upon which of the means a conviction would be claimed. This being denied, the defendant then claimed that the State was bound to establish both.
Appellant is not correct in either of these propositions.' The rule upon this subject will be found in section 585, Bishop’s Criminal Procedure, third edition. The rule in this section has its qualification in section 587. This case does not come within the qualification contained in the last section.
The vital proposition—that which was urged with such ability and learning in argument and brief, by counsel for appellant— is: “ That rape cannot be effected, finder our Code, by a combination of force and threats, unless the force, considered separately, is 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; or unless the threat, considered separately, be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength, and all other circumstances of the case.”
At first view this is quite a plausible proposition; but upon closer inspection we find the proposition ensconced behind another, the solution of which will determine that of appellant. And we believe the bare statement-of the true question will demonstrate the deformity or unsoundness of appellant’s.
While it is true that the force used must be such as might reasonably be supposed sufficient to overcome the resistance, and that this fact must be established by the State, and while it is also true (threats being the means relied on) that the threats must be such as might reasonably create a just fear of death or great bodily harm (and this fact must be shown by the State), [186]*186still, this proposition, this vital question, which lies in front of the one presented by defendant, is submitted: Can threats made by defendant, though not sufficient in themselves, so characterize or give meaning to force—the force not being within itself sufficient—as to render it sufficient to overcome resistance? Again, can force used by defendant, though not sufficient, separately considered, so characterize and intensify threats—the threats not being, sufficient, separately considered—as to constitute the threats such as are likely to create a just fear of death or great bodily harm?
Under the provisions of our Code defining rape, we must answer these questions in the affirmative.
When the force is considered, the threats, whether made prior to or at the time, can and should be looked to; for they so commingle with and inhere in the force as to be a part thereof. And just so with regard to the effect given to threats by the force.
We are not required to go to common law principles for light upon this subject; for our Code, which is in strict accord with reason and common sense, expressly provides that in considering the sufficiency of the force, not only the relative strength of parties may be looked to, but the other circumstances of the case. And, in considering the sufficiency of the threats, the relative condition of the parties as to health, strength, and all other circumstances of the case, should be taken into consideration.
The learned counsel for the defendant, relying upon the correctness of the proposition stated by him above, endeavored to make it practicable by so shaping the charge as to embrace the principles contained in his proposition, and by objecting to all evidence tending to show antecedent threats or force used at former times and places. We do not believe that the court, in its charge, should have confined the jury (in considering the sufficiency'of the force) to the force used at the time, considered separate and independent of former or accompanying threats, and so have treated the threats independently.
The next question presented for a determination is this: “Were former threats against" the girls, violent and brutal assaults and batteries, which tended to subjugate the wills of the girls to that of the appellant, admissible ?” Upon the clearest principles of right and justice, as well as by that provision of the Code which expressly authorizes the jury to look to and consider health and strength, and all other circumstances of the case. Law should be founded upon reason and common sense. Would [187]*187any rational man believe that it would require the same character of force or threats to overcome resistance, or produce just cause for fear of death ór great bodily harm, in a case in which the defendant had, by a course of brutal terrorism, completely subjugated the will of his victim, that it would in a case where the parties were on something like an equal footing—a case in which such control had not been acquired ? In the cases at bar the girls were very young—one being only thirteen years old— and for days and months they had been the subjects, not only of threats, but of the most brutal treatment, especially the younger girl, Amanda. Can it be questioned that by such treatment the will of this girl, yea of either, may not have been effectually crushed, and her acts made to conform to the defendant’s commands, unaccompanied by either force or threats ?
We are of the opinion that the former conduct of the defendant toward these girls was properly admitted in evidence.
In the casa for the rape of Emma Clark, the learned judge who presided on the trial instructed the jury fully the law applicable to both means, to-wit, force and threat#. But in the case ¡¡of the rape of .Amanda, tho charge confined the jury to the threats as the means by which the rape was effected. Counsel for defendant insists that this was not the case, and that there was given to the jury the right to convict defendant of rape by force;
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Hurt, Judge.
On the fourth day of September, A. D. 1883, appellant was placed on trial for the rape of Emma Clark, and was found guilty, with fifty years confinement in the penitentiary as the punishment.
On the seventh day of the same month appellant was tried for the rape of Amanda Clark, and found guilty, the jury assessing the death penalty.
From the judgments rendered on these verdicts the appellant brings the causes to this court by appeal.
Emma and Amanda Clark are sisters. At the time of the supposed rape of Emma she was about fifteen years old; and at the time of the rape on Amanda, she was thirteen years of age.
In almost all of the legal aspects, these causes, as presented by the record, are similar. They differ in the ages of the girls, and in the fact that there was evidence tending to show greater [185]*185force in the Emma case; and the charge of the court in the Emma case contains instructions relative to both the means by which the rape is alleged to have been effected, while that in the Amanda case seeks to confine the jury to threats only. The indictments allege that the rapes were effected by force and threats. All of the questions raised in the first case are presented in the last, and hence a disposition of the last will dispose of the first.
The means used to effect the rape is alleged by the indictment to have been force and threats. These means are set forth in the same count, there being but one count in the indictment. Defendant moved that the State be required to elect upon which of the means a conviction would be claimed. This being denied, the defendant then claimed that the State was bound to establish both.
Appellant is not correct in either of these propositions.' The rule upon this subject will be found in section 585, Bishop’s Criminal Procedure, third edition. The rule in this section has its qualification in section 587. This case does not come within the qualification contained in the last section.
The vital proposition—that which was urged with such ability and learning in argument and brief, by counsel for appellant— is: “ That rape cannot be effected, finder our Code, by a combination of force and threats, unless the force, considered separately, is 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; or unless the threat, considered separately, be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength, and all other circumstances of the case.”
At first view this is quite a plausible proposition; but upon closer inspection we find the proposition ensconced behind another, the solution of which will determine that of appellant. And we believe the bare statement-of the true question will demonstrate the deformity or unsoundness of appellant’s.
While it is true that the force used must be such as might reasonably be supposed sufficient to overcome the resistance, and that this fact must be established by the State, and while it is also true (threats being the means relied on) that the threats must be such as might reasonably create a just fear of death or great bodily harm (and this fact must be shown by the State), [186]*186still, this proposition, this vital question, which lies in front of the one presented by defendant, is submitted: Can threats made by defendant, though not sufficient in themselves, so characterize or give meaning to force—the force not being within itself sufficient—as to render it sufficient to overcome resistance? Again, can force used by defendant, though not sufficient, separately considered, so characterize and intensify threats—the threats not being, sufficient, separately considered—as to constitute the threats such as are likely to create a just fear of death or great bodily harm?
Under the provisions of our Code defining rape, we must answer these questions in the affirmative.
When the force is considered, the threats, whether made prior to or at the time, can and should be looked to; for they so commingle with and inhere in the force as to be a part thereof. And just so with regard to the effect given to threats by the force.
We are not required to go to common law principles for light upon this subject; for our Code, which is in strict accord with reason and common sense, expressly provides that in considering the sufficiency of the force, not only the relative strength of parties may be looked to, but the other circumstances of the case. And, in considering the sufficiency of the threats, the relative condition of the parties as to health, strength, and all other circumstances of the case, should be taken into consideration.
The learned counsel for the defendant, relying upon the correctness of the proposition stated by him above, endeavored to make it practicable by so shaping the charge as to embrace the principles contained in his proposition, and by objecting to all evidence tending to show antecedent threats or force used at former times and places. We do not believe that the court, in its charge, should have confined the jury (in considering the sufficiency'of the force) to the force used at the time, considered separate and independent of former or accompanying threats, and so have treated the threats independently.
The next question presented for a determination is this: “Were former threats against" the girls, violent and brutal assaults and batteries, which tended to subjugate the wills of the girls to that of the appellant, admissible ?” Upon the clearest principles of right and justice, as well as by that provision of the Code which expressly authorizes the jury to look to and consider health and strength, and all other circumstances of the case. Law should be founded upon reason and common sense. Would [187]*187any rational man believe that it would require the same character of force or threats to overcome resistance, or produce just cause for fear of death ór great bodily harm, in a case in which the defendant had, by a course of brutal terrorism, completely subjugated the will of his victim, that it would in a case where the parties were on something like an equal footing—a case in which such control had not been acquired ? In the cases at bar the girls were very young—one being only thirteen years old— and for days and months they had been the subjects, not only of threats, but of the most brutal treatment, especially the younger girl, Amanda. Can it be questioned that by such treatment the will of this girl, yea of either, may not have been effectually crushed, and her acts made to conform to the defendant’s commands, unaccompanied by either force or threats ?
We are of the opinion that the former conduct of the defendant toward these girls was properly admitted in evidence.
In the casa for the rape of Emma Clark, the learned judge who presided on the trial instructed the jury fully the law applicable to both means, to-wit, force and threat#. But in the case ¡¡of the rape of .Amanda, tho charge confined the jury to the threats as the means by which the rape was effected. Counsel for defendant insists that this was not the case, and that there was given to the jury the right to convict defendant of rape by force; and that, as the charge failed to inform the jury of the nature of the required force, it was erroneous.
If this be true, namely, that the jury were authorized by the charge to convict defendant of rape by force, evidently the charge of the court was defective, and the judgment must be reversed. What, then, did the court charge the jury upon this subject? This: “1. If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, C. D. Sharp, in Cooke county, Texas, on any day prior to and within one year of the twenty-fourth of August, 1883, did make an unlawful assault upon one Amanda Clark, and by means of said assault, and by means of threats then made by defendant toward and against the said Amanda Clark, did then and there carnally know and ravish her, the said Amanda Clark, against her will and without her consent, you will find him guilty, and assess his punishment at death, or confinement in the penitentiary for life, or for any term of years nob less than five.
“ 2. The use of any unlawful violence upon the person of another, whatever be the means or degree of violence used, is [188]*188an assault and battery. Any attempt to commit a battery, or any threatening gesture showing in itself, "or by words accompanying it, an immediate intention, coupled with an ability to commit a battery, is an assault. The injury intended in the above definition of an assault may be either bodily pain, constraint, a sense of shame, or other disagreeable emotion of the mind.
“ 3. The threats mentioned in the first section of these instructions, by which a rape may be effected, must be such as might reasonably create a just fear of death or great bodily harm in the mind of the female, in view of the relative condition of the parties as to health, strength, and all other circumstances of the case.”
It is evident from an inspection of this charge that there was no attempt to inform the jury of what character of force was necessary to effect rape by that means; and if, as above stated, the jury were permitted by the charge to convict the defendant of rape by force, this was error. By a long line of decisions the charge should be confined to the case as made by the evidence. Now, suppose that the evidence presented a case in which rape may have been effected by both means, and the charge confined the jurjr to but one means, can the defendant complain? Certainly not. But suppose there be some evidence tending to present a case in which the rape may have been effected by both, and the court should charge the law correctly as to one and incorrectly as to the other, the charge being so framed as to authorize the jury to convict of rape by either means; this unquestionably would be error.
But suppose, as in this case, the jury are confined to threats as the means, and the law applicable to this means is fully charged, and, in addition to the threats, the jury by the charge are required to believe that, to effect the rape, in connection with the means, the defendant must have made an assault and battery upon the girl, would this be error? We think not; for the simple reason that, whether the rape be effected by force or threats, there must be an assault and battery. If this is not the case, the jury were required by the charge to believe, before they could convict, more than was required by law. But it is physically impossible to commit rape by any means without at the same time committing assault and battery. We are of the opinion that there is no error in the charge.
[189]*189Appellant insists that the verdict is not supported by the evidence, and in support of this assignment urges the fact that the girls made no manner of complaint until some two or three weeks had expired. In some cases this fact would cast very strong suspicion on the case; in fact, if there was not a very solid reason in explanation of this failure to disclose, the jury should not convict, especially if a conviction be sought alone upon the evidence of the prosecutrix. But in the cases in hand, if these girls are worthy of credit, very full, clear and reasonable explanation is made why they, or either of them, did not divulge this matter sooner.
By a long course of threats and personal violence, these girls, of tender years,, were brought almost completely in subjection to the will of the defendant. To him they occupied the same relation as that of a slave to a cruel and unmerciful master. His command, to such an extent did they fear and dread him, was the law to them. Nor was this awe and fear of defendant wanting in foundation; for these girls, by a long and terrible experience, had been taught that when defendant spoke he was in earnest, and woe to them if they disobeyed. Not only so; defendant, after the rape, threatened them, if they should divulge, not only with personal violence, but told them that the law would punish them, and would not punish him. Looking, then, to their ages, condition in life, the relation of the parties, and adding to these the brutal treatment of defendant, can it be wondered at that these slaves, in fact, of defendant did not sooner disclose this terrible crime? When, however, defendant had been arrested upon another charge, and was locked up in jail, they promptly disclosed the crime.
We have given this record our most careful attention, and, while we have not discussed all of the grounds relied upon for a reversal of the judgment, we have failed to find such error as will warrant us in reversing the judgment.
We feel that we cannot conclude this opinion without some allusion to the manner and ability in which this man has been defended. From the commencement to the end of this record, the character of the fearless, prudent and able counsel is exhibited. In brief and argument these traits are well presented, and the unfortunate defendant cannot, upon the terrible day of his execution, lay any blame at the feet of his counsel.
If this poor wretch is not guilty, perjury of deepest and most [190]*190terrible character has prevailed; for if these girls spoke the truth the jury could have rendered no other verdict than guilty.
Opinion delivered December 1, 1883.
Finding no error, we are constrained to affirm these judgments.
Affirmed. ■