
    CHARLES v. STATE.
    (No. 4501.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Rape <&wkey;59(20, 21) — Instructions—1Grade ob Degree oe Ofeense — Necessity.
    Although an indictment for rape included offense of assault with intent to rape, a request, submitting the lesser charge, was properly refused, where the evidence did not raise the question, the defendant absolutely denying claim that assault was made, and the state’s theory being that the crime was fully accomplished.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 99.]
    2. Rape <&wkey;16(l) — “Assault with Intent to Rape.”
    An “assault with intent to rape” involves an assault upon a woman with intent to gratify defendant’s passion at all events, notwithstanding resistance on her part; but, when the assailant succeeds in accomplishing his purpose, the assault with intent to rape passes out, and the crime becomes rape.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 15.
    For other definitions, see Words and Phrases, First and Second Series, Assault with Intent to Commit Rape.]
    S.Rape <&wkey;46 — Admission of Evidence — Incriminating Circumstances.
    In a prosecution for rape, it was proper to admit proof describing the ground and the finding of the woman’s comb on the day after the offense was alleged to have been committed.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54.]
    4. Criminal Law <&wkey;412(8) — Evidence—Admission of Accused.
    The declaration of defendant, claiming it was a colored woman and not a white woman that he had pushed into a gulley at the time in question, was admissible in a prosecution for rape.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 911-917.]
    5. Witnesses c&wkey;40(l) — Competency—Children.
    A negro boy, who was close to the transaction testified to by the injured party and defendant in a prosecution for rape, held a competent witness.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 97.]
    6. Witnesses <&wkey;79(3) — Competency—Question for Court.
    It is a general rule of evidence that the competency of children as witnesses is for the court’s determination, this rule being also stated in Vernon’s Ann. Code Or. Proe. 1916, art. 788, providing that children who, after being examined by the court, appear not to possess sufficient intellect to relate transactions, or who do not understand the obligation of an oath, are incompetent to testify.
    [Ed. Note. — For other cases, - see Witnesses, Cent. Dig. § 203.]
    7. Rape <&wkey;62 — Evidence of Complaining Witness — Consideration.
    In prosecutions for rape, and in cases of like character, the court will scrutinize with extreme care the testimony of the injured female, but such rule will not be used where her testimony is sufficiently corroborated.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 103, 104.]
    8. Rape <&wkey;54(2) — Corroboration of Female-Sufficiency of Evidence.
    Evidence corroborating complaining witness’ testimony held sufficient to justify conviction for rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 84.]
    Appeal from District Court, Washington County; R. J. Alexander, Judge.
    Edmund Charles was convicted of rape, and appeals.
    Affirmed.
    Albert Stone and T. B. Botts, bqth of Bren-ham, for appellant. Mathis, Teague & Mathis, of Brenham, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Upon a sufficient indictment duly returned, appellant .was tried and convicted of rape, and his punishment assessed at death. He was a negro and was living at the home of Wilson Glover. He and Glover’s son, a negro boy about 12 years old, were on their way to a neighbor’s, and the route they were traveling intersected that upon which the injured party, Mrs. Koester, was walking. About the time appellant and the boy reached the point at which they came to the woman, the boy on appellant’s suggestion stopped to wait for him at a gate. Appellant followed and overtook the woman and talked with her, exhibiting a knife, according to her testimony, and threatened to kill her if she made any demonstration. She, according to her testimony, was frightened and walked fast, but appellant kept pace with her, and when they reached a point in the road at which there was a bridge and gully, which point was some distance from where the boy stopped, the rape, according to her testimony, took place. The boy said that when she reached this point he heard her hollo, and saw appellant grab her and back her into the gully, on the happening of which the boy turned and ran home and told his father of the occurrence. When appellant returned to Glover’s house, the father of the boy mentioned the report that the boy had made. Appellant denied catching a white woman, and said it was a colored woman. Appellant remained at Glover’s house until his arrest two or three days after the date of the alleged offense. According to Mrs. Koester’s testimony, when they reached the place near the bridge, appellant jumped on her and threw her down when she was exhausted with her efforts to escape him. She claimed to have exerted herself in struggling with and resisting him and to have cried out for help, and that, appellant put his hand on her mouth, tried to choke her, and threatened to kill her if she made further outcry, and that, overpowering her, he had sexual intercourse with her. She gave positive testimony as to penetration. After the occurrence she .went to her home, meeting a witness by the name of Nordt about 300 yards from the bridge, and this witness testified that she was pale and had scratches on the face and chin, grass on her Jrnck and coat, as though she had been lying down. She had no conversation with him, but on reaching home told her husband of the assault, but did not immediately tell him that appellant had succeeded in actual penetration. She said she was afraid to tell her husband the negro had had intercourse with her at that time, but she later in the night did do so. Her husband was not a witness. Appellant was fully identified, and testified to meeting a woman and following her, and to the fact that the boy stopped, but denied any assault on her, claiming that as soon as he saw she was a .white woman he turned and fled. He claimed that he did not touch her; that when following her he thought she was a colored woman; that he did not go nearer than 100 yards to the culvert. There was testimony that the next day the ground near the culvert was examined; that the weeds were mashed down, and there were tracks on the ground and holes in the ground such as would be made by toes, shoe prints, and that at this point a comb belonging to Mrs. Koester was found.

The court’s charge fairly presented the issues, and .was not excepted to. Appellant, however, requested the court by a special charge to submit the issue of assault with intent to rape. The indictment for rape included the offense of an assault with intent to rape, but the court would not be required to give, nor justifie'd in submitting to the jury, that issue unless the evidence was such as to raise it. Boyd v. State, 72 Tex. Cr. R. 521, 163 S. W. 67; Wharton’s Crim. Law, § 747; Shields v. State, 32 Tex. Cr. R. 498, 23 S. W. 893; Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343. An assault with infent to rape involves an assault upon a woman with intent to gratify his passion at all events, notwithstanding resistance on her part; but, when the assailant succeeds in accomplishing his purpose, assault with intent to rape passes out, and it becomes rape. In this case from the appellant’s testimony and theory there was no assault made. Erom the state’s testimony and theory the assault .was made and the purpose fully accomplished. The refusal of the charge was not error. Dusek v. State, 48 Tex. Cr. R. 519, 89 S. W. 271.

We think there was no error in admitting the proof describing the ground and the finding of the comb on the day after the offense is charged to have been committed. Rodgers v. State, 30 Tex. App. 529, 17 S. W. 1077; Sharp v. State, 71 Tex. Cr. R. 636, 160 S. W. 369.

The declaration of appellant, denying that he had pushed a white woman in the gully, as reported by Glover’s son, and claiming that it was a colored woman, was, in our opinion, admissible. May v. State, 33 Tex. Cr. R. 74, 24 S. W. 910; Huffman v. State, 28 Tex. App. 174, 12 S. W. 588; Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366; Wharton’s Crim. Ev., §§ 429, 683.

Appellant insists that, taking into consideration the youth of the boy who testified and the fact that he had been instructed as to the consequences of perjury, and that he testified on cross-examination that he had talked the matter over with his father and the officers several times, and that he said that he did not tell it exactly alike every time, and the alleged fact that Mrs. Koester’s identification of the appellant was not positive, and that in her first statement of the occurrence she did not report the penetration, the evidence is rendered insufficient to support the verdict of the jury.

There is nothing in the record which impresses us as indicating that the negro boy was not a competent witness. The question of his competency .was committed to the court by our statute (Vernon’s Ann. Code Or. Proc. 1916, art. 788), and this is the general rule of evidence. Wharton on Ev. § 366; Branch’s Grim. Law, § 554; Vernon’s Ann. O. O. P. 699. We have carefully read his testimony, both on direct and cross-examination, and we have discovered nothing therein which throws such suspicion or doubt on it as to justify us in sustaining appellant’s contention. His proximity to the transaction is testified to both by the injured party and the appellant. Immediately after the assault he ran home and reported the matter to his father, and his subsequent detail of' it on the trial is entirely consistent with the truth of his story.

In cases of this character this court and courts of other jurisdictions have uniformly scrutinized with extreme care the testimony of the injured female. Pefferling v. State, 40 Tex. 487; Wharton’s Crim. Law, § 733; Price v. State, 36 Tex. Cr. R. 143, 35 S. W. 988; Perez v. State, 48 Tex. Cr. R. 226, 87 S. W. 350. The soundness of this rule is beyond question, and it ought not to be departed from, but it is not to be used to prevent a conviction on her testimony when there is nothing in her conduct to discredit her or in cases in which her testimony is sufficiently corroborated. Coates v. State, 2 Tex. App. 16; Goss v. State, 40 Tex. 520; Gazley v. State, 17 Tex. App. 267; Montresser v. State, 19 Tex. App. 281; Dove v State, 36 Tex. Cr. R. 105, 35 S. W. 648; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 772; Hamilton v. State, 41 Tex. Cr. R. 599, 58 S. W. 93.

In this case the prosecutrix is not discredited, but is corroborated. The fact that appellant was present at the commission of the offense and made an assault upon the prosecutrix was corroborated in the admission of the appellant in his testimony on the stand, in the testimony of the boy that he saw the appellant seize the woman and push her into the gully, in his running home and making the report to his father, and appellant’s declaration to the host’s father shortly after the occurrence, denying that he made an assault upon a .white woman, but admitting an assault upon a negro woman at the time and place described by the boy. That there was force, bona fide resistance and want of consent was corroborated by the appearance of the woman, the blood on her face as described by the witness Nordt, the dirt on and disarray of her clothes, her prompt report to her husband and her outcry heard by the boy. These facts and others developed on the trial, finding the comb at the place of the alleged assault, and the condition of the ground and weeds, constitute such corroboration of her testimony as under the authorities mentioned would not warrant us in holding that the conclusion reached by the jury and approved by the trial court was not supported by sufficient evidence.

Fully conscious of the gravity of the case, and after its most careful investigation, we are constrained to order the affirmance of the judgment of the lower court. 
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