Burk v. State , 8 Tex. Ct. App. 336 ( 1880 )

White, P. J.

This prosecution was under an indictment charging appellant and one Mary McBee jointly with rape committed upon the person of Sarah McBee, a female under the age of ten years. Mary McBee was the mother of the injured child ; but on the trial the prosecution was, on motion of the State’s counsel, dismissed as to her, and the appellant was alone placed upon trial, which resulted in his conviction and the assessment of his punishment at death.

In the motion for a new trial, three several errors are pointed out in the expression “penetration of the person of the female by that of the male,” used in the several paragraphs in the charge. Able counsel who represented defendant in the court below have not briefed or argued the case, and we are left to conjecture, in a measure, the full force of the supposed error, the statement in the motion for new trial being limited by simply asserting the error to be in the language we have quoted. If correct in our conjecture, the objection is that the charge is not sufficiently full and explicit in stating positively to the jury that to constitute rape the private parts of the female must have been penetrated by the male member, or sexual organ, of the man. We confess that this would have been better, would put the matter in plain and unmistakable terms, and that always in dealing with such subjects the restraints of over-sensitive modesty should not be permitted to leave in doubt the essential elements whose certainty is requisite in constituting the crime. That it is possible that the person of the male could penetrate the person of the female in other portions of her body than her private or sexual parts, with other portions or members of his person than his male or sexual organ, no one can question; and that such thing is possible without such penetration being rape, is equally certain.

But we do not think the objections well taken when the context or whole of either of the several paragraphs objected to is considered. The same mode of expression is common to each, and we will therefore take, by way of illustration, the sixth, which is in these words, viz. : “ If you believe from the evidence before you, beyond a reasonable doubt, that the defendant, L. Burk, was, before the 29th day of August, a. d. 1879, a male person over the age of fourteen years, and that he, on or after said date and before the presentment of the indictment, did, in McLennan County in this State, obtain carnal knowledge of the person of Sarah McBee, and that said Sarah McBee was a female under the age of ten years at the time, and that he, the said L. Burk, did penetrate the person of the said Sarah McBee with his person, you will find him, the defendant, guilty of rape, whether such carnal knowledge (if any) was obtained with or without consent, or with or without the use of force, threats, or fraud.” Our statute defines “ rape ” to be “ the carnal knowledge of a woman without her consent, obtained by force, threats, or fraud; or the carnal knowledge of a female under the age of ten years, with or without consent and with or without the use of force, threats, or fraud.” Penal Code, art. 528.

It will be observed-that the charge of the court uses the expression “carnal knowledge” used in the definition of the Code to characterize the offence. The words “carnal knowledge ” have a meaning as well understood in common acceptation as any other ordinary expression, and are convertible or interchangeable with the words “ sexual intercourse ” as used in our language. When, in connection with “ carnal knowledge,” “ penetration of the person of the female by that of the male ” is spoken of, there can be no mistake or misapprehension as to what is meant. In McMath v. The State, the Supreme Court of Georgia go to the length of’ saying: “ When a man is charged with the offence of rape, which is defined by law to be the carnal knowledge of a female forcibly and against her will, the charge of carnal knowledge of a female ’ is sufficiently definite and distinct to enable the jury to understand the nature of the offence, without specifying the particular manner in which that carnal knowledge was had.” 55 Ga. 303.

Whilst the charge might, with every propriety, both in morals and modesty as well as law, have been fuller and more specific, we cannot say that it is not sufficiently full and certain to meet all the demands of the law.

Two bills of exceptions were reserved by defendant on the trial, — one with regard to the competency of Sarah McBee to testify in the case, and one to the action of the court in overruling defendant’s application for a continuance. When the competency of Sarah McBee was called into question on account of her tender years, the court, upon suggestion made, under provisions of art. 732 of the Code of Criminal Procedure, examined the child, and after an appropriate examination pronounced her competent and permitted her to testify. This examination, both questions and answers, is set out in the bill of exceptions, and we are of opinion that the child displayed sufficient intelligence to testify as to the transaction, and that the court has not abused the discretion conferred by law in permitting her to testify in the case. Brown v. The State, 2 Texas Ct. App. 115; Brown v. The State, 6 Texas Ct. App. 286; Ake v. The State, 6 Texas Ct. App. 398.

The application for continuance was properly overruled, because of the inadmissibility of the desired evidence, and for want of diligence to obtain the testimony, and for want of compliance with the sixth subdivision of art. 560 of the Code of Criminal Procedure.

There can be no question of the sufficiency of the evidence to fix beyond doubt defendant’s guilt of this most diabolical crime. The injured little girl was not ten years of age, and was small and light of frame, and delicate of health besides. The extremest penalty of the law cannot, under the circumstances of this case, be held too severe for infliction. If ever a case called for its infliction, the horrible details shown by this record make this eminently one of that character. No reason has been made to appear why the hand of the law should be stayed, and the judgment is therefore affirmed.

Affirmed.