Mason v. State , 29 Tex. Ct. App. 24 ( 1890 )

WILLSON, Judge.

There are four counts in the indictment, two charging the offense of kidnapping and two the offense of abduction of a female for the purpose of prostitution.' Defendant excepted to the indictment because it charged separate and distinct felonies. His exception was overruled, and he was tried upon all the counts and convicted of simple abduction; that is, that character of abduction which is punishable by fine only.

Kidnapping and abduction are unquestionably separate and distinct offenses. Their elements are not the same, and the punishments prescribed are different. They are, however, as charged in this instance, offenses of the same character. Penal Code, arts. 521, 527.

It is the rule of the common law, which rule has been followed in numerous decisions in this State, that it is not a valid objection to an indictment that it charges separate and distinct offenses in several counts, even where the offenses charged are felonies, if they be of the same character, differing only in degree. The State v. Dorsett, 31 Texas, 656; Weathersby v. The State, 1 Texas Ct. App., 643; Waddell v. The State, 1 Texas Ct. App., 720; Barnwell v. The State, 1 Texas Ct. App., 745; Irving v. The State, 8 Texas Ct. App., 46; Mathews v. The State, 10 Texas Ct. App., 279; Boles v. The State, 13 Texas Ct. App., 650; Dovalina v. The State, 14 Texas Ct. App., 312; Bean v. The State, 17 Texas Ct. App., 60; Shubert v. The State, 20 Texas Ct. App., 320; Chester v. The State, 23 Texas Ct. App., 577; Keeler v. The State, 15 Texas Ct. App., 111. It was not error to overrule the exception to the indictment.

Instead of the eleventh paragraph of the charge we think the first special instruction requested by the defendant should have been given. If the defendant at the time he took the girl away from her home was mistaken as to her age, believing her to be over 17 years of age, and if such mistake did not arise from a want of proper care on his part, and if the girl went with him voluntarily, he would not be guilty of either of the offenses charged in the indictment. There was evidence which demanded the instructions requested, and such instructions were correct in law. Penal Code, arts. 45, 46.

It was not error to omit to charge the law as to accomplice testimony. If the girl charged to have been kidnapped was under 15 years of age she could not be an accomplice to the offense. If she was under 14 years of age she could not be accomplice to abduction. If she was over 15 years of age and consented to being taken away from her home by the defendant, no offense was committed by the defendant in taking her away. So, under no state of facts, could the girl be regarded as an accomplice within the meaning of the statute relating to accomplice testimony.

But we are of the opinion that if there was no error in refusing the special instruction as to mistake requested by the defendant, the conviction should be set aside because of the unsatisfactory, uncertain, and insufficient character of the testimony upon which it is based. There is no positive evidence, except that of the girl, as to her age at the time she was taken away by the defendant. She testified that she was at that time 13 years old. On the other hand, it was proved that before the alleged offense she told the defendant that she was 18 years old, was a woman grown, and had been the mother of a child. There was other evidence tending strongly to show that at the time of her alleged abduction she was more than 15 years of age. We think the evidence preponderates that she was over that age. If she was over said age and consented to go with defendant, he is not guilty as charged. That she did consent to go with him and to remain with him for several days, having sexual intercourse with him, is, we think, clearly established by the evidence, notwithstanding her denial that she went with him voluntarily, but was forced by him to do so.

We think the effect of the verdict finding defendant guilty of simple abduction is to bar any further prosecution against him. upon the charge of kidnapping and upon the charge of felonious abduction. If tried again he should be tried only for the offense of which he has been convicted.

Because the court erred in refusing said special instruction, and because of the insufficiency of the evidence, the judgment is reversed and the cause is remanded.

Reversed and remanded..

Judges all present and concurring.