Rogers v. State , 124 Tex. Crim. 430 ( 1933 )


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  • LATTIMORE, Judge.

    Conviction for rape; punishment, five years in the penitentiary.

    Three men induced two young girls, strangers apparently, to take a ride with them in the nighttime. The girls were sixteen years of age. Appellant had been married, appears to be a man *432something over thirty, and used his car. The car was stopped out in the edge of town or in the country. The other girl left the car with one of the men, who came back presently and reported that she had gotten away from him. According to prosecutrix in this case, both men who remained at the car had forceable carnal knowledge of her over her resistance and protest, appellant first, and then the other. She said it was her first experience, and that she resisted all she could. She reported the matter that night, and was examined the next day by a doctor who testified to her bruised and lacerated private parts, and said she had been recently penetrated, and gave it as his belief from his examination that this was the first thing of the kind to have taken place with her.

    Appellant swore that neither he nor the other men who remained at the car had or attempted to have intercourse with prosecutrix. He attempted by cross-examination of prosecutrix and other testimony to circumstantially raise the issue as to her previous unchaste character. On the subject the trial court in his charge gave to the jury the following:

    “You are instructed that the lack of chastity of a female may be proved by circumstances, acts and conduct, and in this case you will consider all the acts and conduct of the prosecuting witness, Noney May Hudgpeth, and all the circumstances in connection therewith, in evidence in this case, in passing upon such matter.
    “I charge you that the lack of chastity of a female upon whom the offense of rape is alleged to have been committed, when such female is over the age of fifteen (15) years and under the age of eighteen (18) years is under the law an absolute defense to such charge when the intercourse is with her consent, and you are instructed to consider all the facts and circumstances in evidence before you as to the chastity of Noney May Hudgpeth, and if you should believe from the evidence that she was at such time unchaste and that the intercourse was with her consent, or if you should have a reasonable doubt thereof, you will acquit the defendant.
    “You are instructed further that unless, you believe, beyond a reasonable doubt, that the defendant assaulted the said Noney May Hudgpeth, and unless you believe, beyond a reasonable doubt, that at such time the said Noney May Hudgpeth was chaste, and unless you believe beyond a reasonable doubt, that the defendant had carnal knowledge of the said Noney May Hudgpeth, you will acquit the defendant.”

    We think this a clear and positive presentation of this de*433fensive issue, and that it gave to appellant more than he was entitled to, (see Simpson v. State, 93 Texas Crim. Rep., 303), and that it rendered wholly unnecessary the first and second special charges asked and refused herein.

    The indictment herein charged that “appellant did then and there * * * upon * * * a female under the age of eighteen years, make an assault, and did then and there ravish and have carnal knowledge of the said * * * she not being the wife of the said Rogers,” etc. The court submitted the case to the jury both on the theory of rape by force, and that of statutory rape on a female under the age of eighteen years, not the wife of the accused. In submitting the issue of rape by force we think the trial judge again gave to appellant more than he was entitled to, in view of what we said in Dyer v. State, 283 S. W., 820. We see no error in the refusal of special charge No. 3 relative to the issue of rape by force.

    We find thirteen bills of exception in the record, all filed March 23, 1933. We cannot consider them. According to the record before us appellant’s motion for new trial was overruled January 1, 1933, at which time notice of appeal was given, and an order entered allowing fifty days for filing statement of facts and bills of exception. This time allowance ended February 20, 1933. If it was intended by the order to grant appellant fifty days from the adjournment of court, which adjourned January 27, 1933, said time allowed in which to file bills of exception expired March 18th. We find no order extending said time, in the record.

    Fnding no error in the record, the judgment will be affirmed.

    Affirmed.

Document Info

Docket Number: No. 16000

Citation Numbers: 124 Tex. Crim. 430, 63 S.W.2d 384

Judges: Hawkins, Lattimore

Filed Date: 5/31/1933

Precedential Status: Precedential

Modified Date: 1/13/2023