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: 228
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228 DAVIS V. THE STATE. [Term of
Opinion of the Court.
George Clarke, for State, cited Wharton's Am. Cr. Law, Sec.
1137, 1139; 2 Bishop, Am. Cr. Law, Sec. 1132; Roscoe's Cr.
Ev., 808; Wharton & Stille, Med. Juris., Sec. 427 et seq.; 1
Russ on Cr., 678, 679; 11 Cush., 547; 29 Cal., 575; 2 Bish.
Cr. Proc., Sec. 954.
MooRE, J. The objections urged against the indictment are
not well taken. It is not drawn with grammatical accuracy, or
in strict conformity with common law precedents. The only
material defect in it, however, in these particulars, is in the improper
substitution of the noun "rape" for the verb "ravish."
It is unquestionably well settled that an indictment for this
offense under the common law must contain the word "rav"ish."
To charge merely that the defendant "did carnally
"know," etc., is not sufficient to support the indictment. The
reason given for this is that, by the charge "did ravish," force
and violence by the man, and want of consent of the woman,
are implied, while by that of " carnal knowledge " merely, they
are not (Harman v. The Commonwealth, 12 S. & R. 69). But
the offense with which the appellant in this case is charged, is
the rape of a female under ten years of age, which as defined by
the code, is the carnal knowledge of such female, with or without
consent, and with or without the use of force, threats or
fraud. (C. C., Art. 523). Whether the averment, as in this
indictment, that the carnal knowledge was had by force, and
without consent, would obviate the necessity of the specific
charge that the defendant "did ravish" in an indictment for
the rape of a female over ten years of age, or if not, whether the
averment that he "did rape" would not be "understood in
" common language, taking into consideration the context and
" subject matter relative to which " these words " are employed"
in the indictment, should not be held to impart the same
meaning as "did ravish," need not be determined at present.
The essential fact which constitutes the offense with which
appellant is charged, is unquestionably alleged in the indictment
with as much fullness and perspicuity as is required.
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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/m1/236/: accessed April 30, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .