
    FOWLER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 22, 1912.)
    1. Rape (§ 83) — Attempt to Commit Rape-Statutes — Construction.
    The offense denounced by Pen. Code 1895, art. 640, declaring that the jury may convict of an attempt, where it appears on the trial of an indictment for rape that the offense, though not committed, was attempted by the use of force, threats, or fraud, as defined by articles 634^636, must be committed by the use of force, threats, or fraud; and an indictment, alleging that accused unlawfully assaulted a female under the age of 15 years and attempted to ravish her, does not charge an attempt to commit rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 36; Dee. Dig. § 33.]
    2. Rape (§ 34) — Assault with Intent to Commit Rape — Statutory Offense — Indictment — 1 ‘Attempt. ”
    An indictment, alleging that accused made an assault on a female under the age of 15 years and attempted to ravish her, charges an assault with intent to rape, in violation of Pen. Code 1895, art. 608, providing that, where any person shall assault a woman with intent to commit rape, he shall be punished; the word “attempt” in the indictment being equivalent to the word “intent.”
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 37-41; Dec. Dig. § 34.
    
    For other definitions, see Words and Phrases, vol. 1, p. 621; vol. 8, p. 7586.]
    3. Rape (§ 16) — Assault with Intent to Rape — Evidence.
    The testimony of prosecutrix, 12 years old, that accused carried her to an empty house and laid her down on the floor and told her to do what he wanted her to do, or he would stick a knife in her, and took her clothes off and pulled her legs apart and took out his knife, and she escaped from him, showed an assault with intent to rape, punishable by Pen. Code 1895, art. 608.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 15-19; Dec. Dig. § 16.]
    4. Rape (§ 59) — Instructions—Issues.
    Where the testimony of prosecutrix showed that accused was guilty of an assault with intent to rape, and accused relied on alibi, the refusal to charge on the lesser degree of the offense was not erroneous.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    5. Criminal Law (§ 825) — Instructions— Requests — Necessity.
    Where accused, relying on an alibi, presented no requested instructions on the subject, he. could not-complain of the charge that, if the jury did not believe that accused was present at the time and place of the commission of the offense, and that he was at some other or different place; or if there was a reasonable doubt on the question, accused must be acquitted, and that accused was presumed to be innocent until his guilt was proved beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    6. Criminal Law (§ 939) — New Trial — Newly Discovered Evidence.
    A new trial on the ground of newly discovered evidence was properly refused, where accused knew of the newly discovered witness before the trial, and had talked with him, since he did not use ordinary diligence to procure the witness.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2318-2323; 939.] see Criminal Dec. Dig. §
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Charley Fowler was convicted of crime, and he appeals.
    Affirmed.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

In this case appellant was indicted for assault with intent to rape; the indictment reading as follows, omitting the formal parts: “Did unlawfully make an assault in and upon the person of Cora Lee Stout, a female under the age of 15 years, and not the wife of him, the said Charley Fowler, did then and there attempt to ravish and have carnal knowledge of the said Cora Lee Stout.”

1. There is a judgment in the record overruling' the motion to quash the indictment; but the motion itself does not appear in the record. Looking to the motion for a new trial, in paragraphs 6, 7, and 8, we find the complaint was made that the indictment attempted to charge appellant “with an attempt to commit rape,” and was insufficient to charge that offense; and, further, that the indictment is insufficient to charge an “assault with intent to commit rape,” and the court erred in submitting the latter offense to the jury.

This brings into review articles 60S and 640 of the Penal Code. In the cases of Brown v. State, 7 Tex. App. 569, Burney v. State, 21 Tex. App. 565, 1 S. W. 458, Taylor v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656, Milton v. State, 23 Tex. App. 204, 4 S. W. 574, Melton v. State, 24 Tex. App. 284, 6 S. W. 39, Reagan y. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833, it is clearly held that these statutes create separate and distinct offenses; and by article 640 it is provided; “If it appears on the trial of an indictment for rapé that the offense, though not committed, was attempted by the use of any of the means spoken of in articles 634, 635 and 636, but not such as to bring the offense within the definition of an assault with intent to commit rape, the jury may find the defendant guilty of an ‘attempt to commit the offense.’ ” Article 634 defines “force,” article 635, “threats,” and article 636 “fraud.” So the offense denounced by article 640 must be committed by the use of force, threats, or fraud, as defined in those articles; and it is clear that the indictment, herein copied, does not charge, nor seek to charge, that offense; and the authorities quoted by appellant, showing that the indictment is insufficient to charge that offense, correctly state the law.

However, this case was not tried on the theory that the indictment charged the offense defined in article 640, and the court did not submit that offense to the jury; but it was claimed by the state that the offense charged in the indictment was an assault with intent to commit rape, as defined by article 608, and this is the offense the court submits to the jury for their determination.

Article 608 reads: “If any person shall assault a woman with intent to commit the offense of rape, he shall be punished by confinement in the penitentiary for any term of years not less than two.” Tinder this article of the Code, it has been held, to charge this offense on a female under the age of consent, it is unnecessary that force, threats, or fraud were used. In the case of Moore v. State, 20 Tex. App. 275, Judge White, speaking for the court, holds: “Where the injured female is under the age of 10 years, it is neither necessary to allege in the indictment, nor to prove on trial, that the offense was committed ‘with or without consent and with or without the use of force, threats or fraud,’ because carnal connection with a female of such tender years is per se rape under any and all circumstances, whether with her consent or not. Penal Code, art. 528. Allegations, then, of force, threat^, and fraud should, in such cases, never be used. Standard precedents and prescribed forms do not contain them. 1 Whart. Prec. of Ind. 189, 190; 1 Bish. Grim. Proc. § 481; Willson’s Crim. Forms, Nos. 374, 375, pp. 167, 168; Mayo v. State, 7 Tex. App. 342; Gibson v. State, 17 Tex. App. 574; [State v. Gaul] 50 Conn. 578.”

It is thus seen that in charging a violation of article 608 on a female under fifteen years it is only necessary to allege and prove that an assault was made with the intent to commit the offense of rape. In this indictment it is alleged that defendant made an assault on the female, and did then and there attempt to ravish and have carnal knowledge of the said Cora Lee Stout. In the case of Taylor v. State, 44 Tex. Cr. R. 153, 69 S. W. 149, it is held that an indictment drawn in terms similar to this oné charges an offense under article 608; and the use of the word “attempt,” in lieu of the word “intent,” in the indictment is held to be a sufficient compliance with the Code. Mr. Bishop, in his Procedure, says: “It seems impossible to doubt that the only distinction between an ‘intent’ and an ‘attempt’ to do a thing is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution.” Atkinson v. State, 34 Tex. Cr. R. 424, 30 S. W. 1064; Hart v. State, 38 Tex. 383; Brown v. State, 27 Tex. App. 330, 11 S. W. 412; Witherby v. State, 39 Ala. 702; State v. Bullock, 13 Ala. 413; Gandy v. State, 13 Neb. 445, 14 N. W. 143; Scott v. People, 141 Ill. 195, 30 N. E. 329; United States v. Barnaby (C. C.) 51 Fed. 20; State v. Evans, 27 Utah, 12, 73 Pac. 1047; Johnson v. State, 27 Neb. 687, 43 N. W. 425; State v. McGinnis, 158 Mo. 105, 59 S. W. 83. It is thus seen the allegations in the indictment are sufficient to.charge an offense on a female under 15 years of age, under article 608; and the court did not err in overruling the motion to quash the indictment, and in submitting this offense to the jury in his charge. The case of Wyvias v. State, 142 S. W. 585, is not in conflict with the case of Taylor v. State, 44 Tex. Cr. R. 153, 69 S. W. 149, nor with this holding. In the Wyvias Case, the court submitted the offense denounced by article 608, and the jury found appellant guilty of the offense defined by article 640; and, as the court submitted only the offense defined by article 608, the case was reversed. Had the conviction been under the first count in the indictment, and which was the only one submitted by the court to the jury, the conviction would have been permitted to stand. And this indictment properly charging an offense on a female under 15 years of age, under article 608, it was only necessary for the court to define what was meant by assault, and it was not necessary to define force, or state that the offense must have been committed by force; for this offense can be committed with or without the consent of the injured female.

Cora Lee Stout is shown to have been only 12 years of age; and she testified that she carried the baby to her mother, and was returning home, and had stepped upon the gallery, when, to use her own language, “appellant grabbed me and carried me down there close to Royal street to an empty house; and he laid me down on the floor, and he said if I didn’t do just as he told me to he would stick a knife in me. He didn’t do nothing; but be said be was going to. He bad bold of me. He laid me on tbe floor, and he took my panties off of me; then be pulled my legs apart, and be said wbat I have said, and pulled bis knife out and laid it aside of him. That is all that was done. I never said anything to him. I told him I was going to tell my mother when I got home. That is all he said to me. He said if my pussy ain’t big enough he will cut it big enough; and I commenced hollering, and he was afraid tbe people in tbe next house would, heal- me, and he tried to get me in the barn, and I got loose from him and got home. Every time I would try to holler he would put his hand over my mouth, and then I would get his hand off. I got loose from him while we was going to th.e barn. lie run me pretty near to my house. Mrs. Hargrove, police matron at the city hall, has my panties; the county attorney, Mr. Brown, got them out of the house. This occurred in Ft. Worth, Tarrant county, Texas.”

2. Appellant’s defense was an alibi. This did not present the issue of simple assault. If the prosecuting witness’ testimony was true, it was an assault to rape. If appellant’s testimony was true, he was guilty of no offense, for he says he was not there, but at home; therefore the court did not commit an error in not charging on the reasonable doubt as between degrees of an offense. If the evidence raised the issue of the lesser degree of offense, there would be some strength in appellant’s contention in this respect; but, inasmuch as the testimony did not call for a charge on simple assault, the failure of the court to charge on reasonable doubt as between degrees will not be considered.

3. The court charged the jury: “If you do not believe from the evidence that defendant was present at the time and place when and where the offense, if any, was committed, but that he was at some other and different place, or if you have a reasonable doubt as to whether this is the case, then you will find him not guilty. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and if you have a reasonable doubt of his guilt you will acquit him.” Appellant, in his motion for new trial, insists that the court should have presented a more full and specific charge on alibi. Appellant requested no charge in this respect, and in the case of Jones v. State, 53 Tex. Cr. R. 131, 110 S. W. 741, 126 Am. St. Rep. 776, this court held that, where the defense of alibi arises in a case, and the court submits the issue of defendant’s guilt and charges the doctrine of reasonable doubt, this includes, of necessity, a finding by the jury as to whether defendant was present or not; and the case should not be reversed, in the absence of requested instructions.

4. There was no error in refusing a new trial on the ground of newly discovered evidence. Appellant's testimony and the testimony of the mother of the witness, alleged to be newly discovered, shows that appellant knew before the trial that such witness was present on the occasion. Appellant and Mrs. Joyce testify to many facts that it is alleged this newly discovered witness would testify to, and the testimony of both of them shows that they knew the witness was present on that occasion; for they claim appellant was talking to the witness on this occasion. A new trial will not be granted for newly discovered evidence which could have been discovered by the use of ordinary diligence. Carrico v. State, 36 Tex. Cr. R. 618, 38 S. W. 37, and authorities cited in section 1149, White’s Ann. Proc. And it has been held that newly discovered evidence will not authorize a new trial, if the purpose of such evidence be merely to impeach or discredit a witness who has testified on the trial. Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649; Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866; subdivision 8 of section 1149, White’s Procedure.

The other matters complained of in the motion present no error, and the judgment is affirmed.  