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: 229
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1875.] DAVIS v. THE STATE. 229
Opinion of the Court.
Indeed, the most plausible objection to the conviction under
the indictment is, that although it was unnecessary to do so,
still, as the offense is alleged to have been committed without
consent, and by force, it became thereby incumbent upon the
state to prove these unnecessary averments. They were probably
inserted in the indictment lest it might turn out on the
trial, that the female alleged to have been injured was, in fact,
over ten years of age; in which event, unless the word rape, as
we have said, should be held as synonymous, as used, with
ravish, the indictment would have been unquestionably insufficient
to sustain a conviction. But when the facts were developed
in the trial, the offense committed by appellant, if
guilty of rape, was by injury done a female by reason of whose
tender years neither force, or threats, or want of consent were
essential constituents of the offense, and looking at and treating
the indictment as applicable to the case before the court,
we think we are warranted in regarding these averments as
mere surplusages which it was unnecessary for the State to
prove in order to warrant appellant's conviction.
It is positively enacted and ordered by the code that persons
under the age of fourteen are incapable of committing rape.
But this is in a distinct and subsequent article from that in
which the offense is defined and prohibited. It was, therefore,
under the well-settled rules of criminal pleading, unnecessary
to allege appellant's age in the indictment for the purpose of
affirming his capacity to commit the offense.
The instruction of the court, to the extent to which it went,
is unquestionably strictly accurate and correct. In view, however,
of the nature of the case, the passion and feeling, if not
prejudice, which such a charge as that preferred in the indictment
is calculated to arouse, and the character of the essential
question upon which its proper determination evidently
turned, and meagre, indefinite, and, to some extent, at least,
unsatisfactory, if not contradictory evidence, from which the
conclusion of the jury was to be drawn, we cannot but think
the charge of the court was neither so full nor perspicuous ir.
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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/m1/237/: accessed August 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .