Hill v. State , 37 Tex. Crim. 279 ( 1897 )

Appellant was convicted of an aggravated assault, and appealed; and at a former day of this court the judgment was affirmed. Appellant now brings the case before us on motion for rehearing, and suggests that this court overlooked his second and third bills of exceptions. The portion of the charge of the court involved in the second bill of exceptions is as follows: "You are charged that if you believe from the evidence that the defendant did, in Donley County, Texas, on or about the 3rd day of July, 1893, on the person of Maggie Walsh commit an assault, by making use of any violent or indecent familiarity towards or upon her, with intent to injure her, or he indecently or violently fondled her person, with intent to injure her, then you must find defendant guilty." In this connection appellant requested the following charge: "It is not enough that defendant handled Maggie Walsh against her consent, but you must find and believe from the evidence, beyond a reasonable doubt, that he violently and indecently handled or fondled her against her consent, with the intent to injure her, before you are authorized to find defendant guilty; and, if you do not so find and believe, you will acquit the defendant." Appellant insists that if an adult male violently or indecently handles or fondles the person of a female, with her consent, with the purpose of having carnal intercourse with her, he does not commit an indecent or aggravated assault, and that the effect of the instruction of the court was to tell the jury that such was an assault; that before such acts of violent or indecent handling of the person of a female, with intent to have carnal intercourse with her, can be an assault, it must be proved to have been without her consent and against her will. And he insists that the proof in this case clearly raised the question, as there was no positive evidence that the alleged assaulted female did not consent to the acts of fondling committed by the defendant; that there was proof tending to show that she was consenting to his acts; and that the court should not have given the charge in question, but should have given the charge as presented by the defendant. The indictment in this case charges that the defendant was an adult male, and that he committed an assault upon Maggie Walsh, who was then and there a female, saying nothing as to her age. We do not understand appellant in this case to controvert the proposition that the State could make proof that the alleged injured female was of tender years, although no such allegation was contained in the indictment; but we do understand him to urge that notwithstanding this, and no matter of how tender years the prosecutrix was, she was capable of consenting to the acts of appellant, and consequently there could be no offense committed by him upon her, she consenting to such acts. We do not believe that such is the rule. Mr. Bishop, in speaking on this question of consent as applied to rape, uses this language: "If in this case consent is obtained by fraud, or if the person, from tender years or other cause, is incapable of consenting, or if, without absolute fraud or actual incapacity, the will is overpowered, etc., the law deems there was no consent." See, 1 Bishop's New Crim. Law, § 261. And again, in speaking on the question of assault, and the effect of consent and the force used, we make the following citations: "The apparent consent of a child of very tender years, too immature to consent, will not necessarily be an answer to a charge of an assault, Overpowering the will of the injured person does not avail the other, and in some circumstances slight acts will be sufficient proof to deem that it was overpowered. If a schoolmaster take indecent liberties with a female pupil, who does not resist, her tender years and relative subjection to him may justify a jury heeding her testimony that what was done was really against her wishes, in pronouncing him guilty." See, 2 Bishop's New Crim. Law, §§ 35, 36. In Oliver v. State, 45 N.J. Law, 46, this question is discussed. We quote therefrom as follows: "By the fifth request, the court was asked to charge that, in order to convict, under the court for assault, the evidence must satisfy the jury that the accused committed the alleged indecent act against the will of the child." This the court refused to charge, and in such refusal there was no error. An act such as charged in that count, committed upon a child of such tender years, is criminal, whether with or without her consent. Legally, she has no will to resist or consent. There may be actual submission of a child, without constituting legal consent. Reg v. Day, 9 Car. P., 722. That case applies directly to the question now before the court. Counsel for the prisoner in that case contended that, the count being for assault, consent or non-consent on the part of the girl, although she was of tender years, was material; and that, as she offered no resistance, but submitted quietly, it must be taken that she was consenting to the act; and that the prisoner should be acquitted. But the court refused so to charge, and said that the mere submission of a child when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such consent as will justify the person in point of law." The charge above asked and refused was upon a count charging the defendant with an indecent assault. It is not controverted that it was admissible to show, under the allegations of the indictment charging an aggravated assault by an adult male upon a female, that the age of the female could be shown. This was shown, and the testimony is not gainsaid that she was only eight years old. The acts proved, as said in the previous opinion, showed an indecent handling and fondling by appellant of said female. The little girl was the only witness introduced on this branch of the case, and her testimony suggests not only an indecent fondling, but, it occurs to us, was entirely against her will and consent. Appellant does not testify on this point at all; he directly denies the entire transaction, stating that nothing of the kind occurred. But, even if it be conceded that there was testimony pro and con, some presenting the idea that she consented, and some that she did not consent, yet we hold that, in the face of the proof that she was eight years old, she was of such tender years as that she could not consent — that is, that she was of such tender years as that she could not consent to the indecent handling of her person by appellant; and that, consequently the court did not err in submitting to the jury that portion of the charge complained of, and in refusing to give the requested instructions of the defendant on this subject. The motion for rehearing is overruled.

Overruled.