Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 226
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226 DAVIS Vt THE STATI. [Term of
Statement of the case.
BUhRRILL DAVIS V. THE STATE.
1. RAPE. At Common Law, an indictment for rape must charge that the
accused " did ravish ; " the use of the noun " rape," instead of the verb
"ravish," is insufficient.
2. RAPE OF A FEMALE UNDER TEN YEARS OF AGE. As carnal knowledge,
with or without consent, of a female under ten years of age, is rape, the
allegations of force and want of consent are immaterial, and mere surplusage,
and if alleged need not be proved.
3. INDICTMENT. It is not necessary in an indictment for rape to charge that
the accused was over fourteen years of age at the time of the offense;
if under that age such fact is matter of defense.
4. PENETRATION. See testimony, held inconclusive of guilt, as to penetration,
5. Medical testimony should be had in investigations of cases of rape upon a
female under ten years; an examination of the injured party should be
had; and every source of knowledge of the fact explored.
APPEAL from DeWitt. Tried below before Hon. D. D.
Burrill Davis was charged by indictment that he "unlaw"fully,
wickedly, feloniously and of his malice aforethought
' in and upon Mary Schwab, then and there, a female under the
" age of ten years, did make an assault, and he, the said Burrill
" Davis, did by force then and there her, the said Mary Schwab,
~rape, penetrate and carnally know, without the consent then
" and there of her, the said Mary Schwab."
On the trial the injured party, Mary E. Schwab, being examined
by the court, was pronounced incompetent to testify on
account of want of understanding the obligation of an oath.
Mrs. Betty Schwab testified that Mary Schwab, the person
alleged to have been injured, was her daughter, over eight years
old now; was eight years old Sept. 16, 1874 (trial was in December
of that year); that between 12 Ar. and 1 P. M. of the
14th of Sept., 1874, in De Witt county, Texas, the accused was
called by witness to dinner, he being a colored laborer employed
by the husband of witness to pick cotton, not far frol
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/234/: accessed March 19, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .