Rodriguiz v. State , 20 Tex. Ct. App. 542 ( 1886 )

White, Presiding Judge.

This appeal is from a judgment of conviction for assault with intent to commit rape, the punishment being assessed at two years in the penitentiary. It is shown by the evidence that Louisa Bodriguez, the assaulted female, was fifteen years of age and an idiot.

Amongst other things, the court charged the jury, “if you believe, from the evidence, that the said Louisa Bodriguez was an idiot and. incapable, from want of mental capacity, of giving-consent to sexual intercourse, and the defendant,, on or about the-time alleged in the indictment, in Hueces county, did make an assault upon said Louisa Bodriguez with intent to ravish her by the -use of force and fraud, as charged in the indictment, and without her consent, she, the said Louisa, then and there being an idiot-and incapable, for want-of mental capacity, to give her consent to-sexual-intercourse, you will find him guilty as charged in the indictment and assess his punishment,” etc. It was alleged in the indictment that the offense was committed by force and fraud and without her consent.

At common law, and in most of the States, the instruction' of the court would have presented the correct rule of law. Mr. Bishop says: “Whenever there is a carnal connection and no consent in fact, fraudulently obtained or otherwise, there is evidently in the wrongful act itself all the force which the law demands as an element of the crime. For example, ... if she is so idiotic as to be absolutely incapable of consent or dissent, and the man does not suppose he has her consent, the connection with her is rape. If more of force were required than is involved in the carnal act, this could not be so.” (2 Bish. Cr. L. (7th ed.), §§ 1120, 1121.) Again he says, “if the woman is non compos and so neglects to oppose, because she has no intelligent will, the intercourse with her, where there is nothing which may be called for the purpose a consent, is rape.” (Id., § 1123.)

But this is not the law as it obtains in Texas under the peculiar phraseology of our statutes with regard to rape. In the well considered opinion of Judge Hurt in Baldwin v. The State, 15 Texas Ct. App., 275, where the subject is most thoroughly discussed, it is said: “But, suppose she is insane — non compos mentis—without knowledge of the right or wrong as to. the act, but nevertheless assents, prompted by natural desire,— in such a case we áre of opinion that, under our Code, there could be no rape. For, by article 528, the carnal knowledge must be by force, and without the consent of the female.” Again he' says: “We are of opinion that, in a case in which the female is over ten years of age, rape cannot be committed unless against the consent of the woman, and force, threats or fraud be the means used to effect the act of carnal knowledge. For, if there be no force, threats or fraud used, under our statute, be the common law what it may, most evidently there can be no rape. Nor will the force which of necessity is involved in the carnal act be sufficient.” So profoundly impressed was this court with the radical deficiency of our law in this particular, that it was respectfully suggested in the Baldwin case that the Legislature should pass an act which would supply this serious defect in the law. • And again it was recommended to the Nineteenth Legislature that they amend article 528 so as to cure this defect (Rept. of Att’y Gen., 1884, p. 17), but the Legislature seem to have thought it unnecessary; at all events, they have not acted upon the suggestion or recommendation. Meantime one of the most revolting and heinous crimes against humanity can be perpetrated with impunity, because it is no crime under our law.

[Opinion delivered March 10, 1886.]

For error in the charge of the court to the jury the judgment is reversed and the cause remanded.

Memrsed and, remanded*