Hindman v. State , 152 Tex. Crim. 75 ( 1948 )

We gather from appellant's motion for rehearing that because we did not discuss every point raised by him he assumes they were not considered.

Many times questions are raised that have been so well settled it adds nothing to the jurisprudence of the State to discuss them again. This is illustrated in the present case by an exception to the charge of the court because the jury was not instructed that prosecutrix was an accomplice. This objection was in the face of the unbroken line of decisions to the contrary. See Hamilton v. State, 36 Tex.Crim. R.,37 S.W. 431; Cook v. State, 88 Tex.Crim. R., 228 S.W. 213; Donley v. State, 44 Tex.Crim. R.; Lucas v. State,86 Tex. Crim. 439; 216 S.W. 396; Brewer v. State, 95 Tex.Crim. R.,254 S.W. 809; Battles v. State, 63 Tex.Crim. R.,140 S.W. 783.

Let it be understood now that all objections to the charge were considered as well as other questions raised by bills of exception, and were thought not to be meritorious whether or not they were specifically discussed.

We will give attention to such matters as appeal to us as meriting particular mention.

Appellant especially complains because we did not discuss his bills of exception numbers 3, 6, 12 and 14. The court qualified each of these bills, which were accepted by appellant without objection. Considered in connection with the qualification neither of the bills are thought to present error.

Appellant insists that the trial court should have given a peremptory instruction to the jury to return a verdict of not guilty because prosecutrix waited too long to complain about appellant's conduct. In support of his position he cites Merrill v. State, 201 S.W.2d 232; Price v. State,35 S.W. 988; Gray v. State, 130 Tex.Crim. R., 93 S.W.2d 1146. In Merrill's case prosecutrix was eighteen years old; in Price's case she was twenty-one years old; in Gray's case she was over eighteen years old. In the present case prosecutrix was only fifteen years old, and the prosecution was for rape of a female under the age of consent. If a female consents to intercourse it is not likely she will report the matter, but this does not excuse criminality of the man who has enjoyed her sexual favor.

Appellant particularly stresses paragraph eight of his objections to the court's charge, in which objection complaint is made because the court did not tell the jury: — "* * * if they should find and believe from the evidence that prosecutrix was in company with and rode in the car with defendant subsequent to the alleged offense, or if they had a reasonable doubt thereof they will acquit the defendant, this being an issue made by the evidence in this case that prosecutrix did ride in a car with defendant and hugged and kissed him approximately five weeks after the alleged offense."

If the court had given the charge there suggested it would have been an instruction on the weight of the evidence, and would have been equivalent to withdrawing from the jury the right to determine from all the facts whether appellant had intercourse with prosecutrix upon the occasion under investigation. If she was under the age of consent and appellant had intercourse with her he would be guilty under the law, although she might later have gone with him and even hugged and kissed him.

We have again examined the record and all bills, and objections to the court's charge, and same have had our attention whether discussed in detail or not. We fail to discover any reversible error.

The motion for rehearing is overruled.