Appellant was convicted of an assault with intent to rape Miss Eva May Collins, and appeals. *Page 427
The charging part of the indictment reads: "That John Hardin on or about the 17th day of April, 1897, in the county of Frio, then and there unlawfully in and upon Eva May Collins, a female under the age of 15 years, did make an assault with the intent then and there to commit the offense of rape, by then and there attempting by force to have carnal knowledge of her, the said Eva May Collins; the said Eva May Collins being then and there a female under the age of 15 years, and the said Eva May Collins not being then and there the wife of the said John Hardin." This indictment is sufficient if an assault with intent to rape can be committed upon a female under the age of 15 years, she consenting thereto in fact, but insufficient if consent defeat the assault. Now, then, can a person be guilty of an assault with intent to rape a girl under the age of 15 years, she consenting to what was done? We will not discuss a case in which the girl has not the capacity in fact, but one in which she does consent, and is not 15 years of age. There can be no assault without an attempt, but all attempts do not include an assault. In this case it is not necessary to discuss the difference between an assault and an attempt to commit a crime. We have an offense known as an attempt to commit rape. Article 640, Penal Code, describes this offense as follows: "If it appear, on the trial of an indictment for rape, that the offense, though not committed, was attempted by the use of any 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, and affix the punishment prescribed in article 608." The attempt referred to in this article falls short of an assault, but the offense of rape must be attempted by the use of some of the means named in articles 634, 635, and 636. The provisions of article 640 can not apply to a case in which the girl consents. Why? Because article 640 requires that the rape must be attempted by the force, threats, or fraud defined in articles 634, 635, and 636. Article 608 provides: "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." Article 611 provides: "An assault with intent to commit any other offense is constituted by the existence of the facts which bring the offense within the definition of an assault, coupled with an intention to commit such other offense, as of maiming, murder, rape, or robbery."
Now, then, the question: Is there an assault in attempting to have carnal knowledge of a female under the age of 15 years, she consenting; the attempt being of such a character as to constitute an assault, she not consenting? What, therefore, is an assault? To correctly understand the meaning of an assault, we must look to that which constitutes an assault and battery. Article 587, Penal Code, defines both an assault and battery and an assault. It reads: "The use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture showing in itself or by *Page 428 words accompanying it an immediate intention, coupled with an ability to commit a battery, is an assault." "Any attempt to commit a battery" means any attempt to inflict unlawful violence upon the person of another with intent to injure him. "Or any threatening gesture, showing in itself or by words accompanying it," must be as to show an intention coupled with the ability to inflict unlawful violence upon the person of another with intent to injure him. Article 633 provides: "Rape is the carnal knowledge of a woman without her consent, obtained by force, threats, or fraud, * * * or the carnal knowledge of a female under the age of 15 years, other than the wife of the person, with or without her consent, and with or without the use of force, threats or fraud." It is settled in this State that an assault can not be committed by mere threats, nor can an assault to rape be committed by an attempt to have carnal knowledge of a woman by fraud. Especially is this the case under our statute, because fraud only applies where the woman is induced to believe that the accused is her husband, or in administering, without her consent, some substance producing unnatural sexual desire, or such stupor as prevents or weakens resistance, and the offense must be committed while she is under the influence of such substance. It will be noted, further, from the provisions this statute, that the woman must be induced to believe that the accused was her husband, or some substance must be administered, without her knowledge or consent, producing unnatural desire, or such stupor as prevents or weakens resistance. In this case the female was not imposed on by fraud; no substance was administered to her; and if it had been administered to her, with her knowledge or consent, there would have been no fraud, under the provisions of this statute, because it expressly provides that the substance must be administered to her without her knowledge or consent. It is insisted that she can not consent, and therefore the party would be guilty of an attempt or an assault, depending on the circumstances of the case; that in law she can not consent; and that, therefore, the case would be as though she had not consented, and resisted to the fullest extent. Back to the definition of an assault and battery and an assault, the proposition is this: That as the statute denounces, with a heavy penalty, carnal intercourse with a girl under 15 years of age, the unlawful violence consists in this intercourse, and that, therefore, any attempt to inflict this violence would be an assault. We have very carefully examined the authorities upon this subject, and all base the conclusions reached in the opinions upon the theory that, as the consummated act is prohibited and denounced as a crime, the violence consists in having carnal intercourse with the girl, and that, as she can not consent so as to relieve the consummated act of criminality, therefore she can not consent so as to prevent that which would be an assault without her consent from being an assault with her consent. The following cases support this proposition: Hays v. People, 1 Hill, 351; People v. McDonald, 9 Mich. 150; McKinny v. State, 29 Fla. 565, 10 So. Rep., 732; Davis v. State, 31 Neb., 247, 47 N.W. Rep., 854; Territory v. Keyes, 5 Dak., 244, 38 N.W. Rep., 404; People v. Tenelshof, *Page 429 92 Mich. 167, 52 N.W. Rep., 297; Fizell v. State,25 Wis. 364. There are a number of other cases, no doubt holding the same doctrine as the cases cited. In Davis v. State, 31 Nebraska, 247, 47 Northwestern Reporter, 854, which seems to be the most elaborate opinion written on the subject, we find this proposition stated: "If, as all agree, it is immaterial upon a charge of committing the completed act, which includes an assault, no reason but an extremely technical one can be urged why it should not be so upon the change of assault with intent to commit the completed act. Indeed, to speak of an assault upon her without her consent, with intent to carnally know and abuse her with her consent, seems to involve a contradiction in terms; but when it is once construed with the intention of the law to declare that the young girl shall be deemed incapable of consenting to such an act to her injury, and that evidence of any consent by her shall be incompetent in defense to an indictment thereunder, and that although she gives a formal and apparent consent, yet in law, as in reality, she gives none, because she does not and can not take in the meaning of what is done, all legal difficulty disappears, and the conclusion may be properly urged that the assault is without her consent and against her will." There are two fallacious propositions, to our minds, in this reasoning: First, we would observe that it is a dangerous thing to concede premises. Conceding premises frequently leads to very fallacious conclusions. Take this assertion: "The completed act, which includes the assault." This is begging the question. Concede this proposition, and the other follows of course, — that the assault is committed, though the girl consents, because the consummated act includes an assault. We readily concede that in all rape at common law an assault was included, but we most emphatically deny that in every case of rape in Texas assault is included. We are not discussing attempts. Another proposition, to our minds, appears incongruous and very contradictory: "And that although she gives a formal and apparent consent, yet in law, as in reality, she gives none, because she does not and can not take in the meaning of what is done." How the girl can give a formal and real consent, and yet at the same time does not consent, is incomprehensible to us. Now, it is assumed further that she can not give consent. This is in direct conflict with our statute, which provides, "the carnal knowledge of a female under the age of 15 years, * * * with or without her consent." Penal Code, art. 633. This concedes that she can consent. This statute does not say that if any person shall have carnal intercourse with a female under the age of 15 years, etc., he shall be guilty of rape; but it reads, "with or without her consent, and with or without the use of force, threats, or fraud." It is altogether immaterial, in committing the consummated act, whether the girl consented or not, or whether force, threats, or fraud were used; but that she can consent is evident from the statute itself.
The English authorities are in perfect harmony upon this subject; holding that if the girl consents, though the consummated act be a crime, yet there is no assault. See the following cases: Reg. v. Martin, 9 Car. *Page 430 P., 213, 215; Same v. Johnson, Leigh C., 632; Same v. Read, 2 Car. K., 957; Same v. Mehegan, 7 Cox, Cr. Cas., 145; Same v. Banks, 8 Car. P., 574; Same v. Meredith, Id., 589. In reply to the proposition, that the girl can not consent, we desire to refer to the answer of Lord Denman to Mr. Robinson in the case of Reg. v. Read, 2 Car. K., 957: "Mr. Robinson, for the prosecution: Suppose the case of an idiot, or a person asleep. Here he insisted that the jury find that the child had not intelligence to consent. Lord Denman replied: I hope that the courts will state their cases a little more clearly than this is stated. I think, on the evidence, that the indecent liberties were against the consent of the girl, and that the jury ought to have found the defendant guilty. But they have found by their verdict that she consented. Mr. Robinson has argued that she could not give a legal consent. But I think it is enough if she gave an actual consent. * * * The verdict of not guilty must be entered." George Read was convicted of an assault upon a girl 9 years of age; and the court in that case, as we have seen, held that there was no assault.
The best opinion we have read upon this subject is in the case of Smith v. State, 12 Ohio State, 466. There were three counts in the indictment. The first count charged an assault with intent to rape, and the second and third counts charged a felonious assault to carnally know and abuse the girl, being a female child under the age of 10 years. A nol pros was entered as to the first count. It will be observed that the second count did not charge that Smith, with force, threats, or fraud, made the assault with intent to carnally know the girl, nor did it allege that he intended to have carnal knowledge of her without her consent. The question was whether that count charged an offense against the laws of Ohio. The court in that case held that there was no assault, though the girl was under 10 Years of age. The statute under which the prosecution was had prohibited carnal intercourse with a girl under the age of 10 years, with her consent. The Ohio statute denominated it rape. So the Smith case is directly in point.
We find this proposition laid down by Mr. McClain in his work on Criminal Law: "In those States where the offense of having carnal knowledge of a female child under the age of consent is regarded as a different crime from that of rape, the attempt to have such connection is not an assault with intent to commit rape. But where, as is the rule in most States, the connection with a female child under the age of consent is considered as rape, if is almost universally held that an attempt to have such connection is an assault with intent to commit rape; the consent of the child being wholly immaterial." McClain Crim. Law, sec. 164. In support of the first clause he cites Rhodes v. State, 1 Cold., 350; Brown v. State, 6 Baxt., 422; Hardwick v. State, 6 Lea, 103; Smith v. State, 12 Ohio St. 466. We have consulted these cases, and none of them support the proposition. The proposition stated is evident, so far as one question is concerned; that is, whether, conceding an assault, the party was guilty of an assault with intent to rape. It is evident that there *Page 431 could be no assault with intent to rape, though there might be an assault, unless the consummated crime was rape. The second clause is true to this extent: That, if there be an assault, the party intending to have carnal knowledge of the female, and the consummated crime being rape, then it would be an assault with intent to rape. But whether the consummated crime be rape or not — whether it be christened or unchristened — has nothing to do with this discussion, because there can be no assault with intent to rape unless there is an assault. The opinions discussing whether there can be an assault do rely upon the fact that the consummated crime would be rape, in order to arrive at the conclusion that an assault was committed. The only question is, if the girl consents, can there, in the very nature of things, be an assault? Concede the assault, and the testimony showing the intent to have carnal intercourse, and the consummated crime being rape, then evidently it would be an assault with intent to rape. But, without an assault, the other question, whether it was with intent to rape, has no bearing on the subject.
We desire to make some observations on the subject of naming offenses. It is desirable to name all offenses, if possible to do so, consistent with the nature of the crime. By doing so the proceedings in cases will be very much abbreviated, and more convenient. If the offense is named by the statute, bail bonds, etc., need not set forth the elements of the crime; writs containing the of the offense will be sufficient; verdicts and judgments naming the offense will suffice. But the name given to a crime does not alter its constituent elements. Why? Because "an offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in this Code." See Penal Code, art. 53. The act or omission forbidden by positive law must be defined in plain language. See Id., art, 1. In order to ascertian what is an offense, we do not look to its name, but to the act or omission forbidden, and defined in plain language by the Code. The carnal knowledge of a woman without her consent, obtained by force, threats, or fraud, is named "rape." The carnal knowledge of a female under the age of 15 years, other than the wife of the person, with or without her consent, and with or without the use of force, threats, or fraud, is also christened "rape." But are they in fact the same offenses? They have the same name, but the name given to unlawful acts or omissions is frequently no index to the nature of the offense. We must look to the acts or omissions denounced in plain language by the Code to ascertain the character of the offense. The Legislature had the authority to give these forbidden acts just such names as it deemed proper. But by naming the carnal knowledge of a female under the age of 15 years, etc., "rape." did not make the two offenses in fact, nor in law, the same. Their elements are radically different. Rape, proper, — that which is first defined in plain language, — can not be committed with the consent of the woman; nor without force, threats, or fraud, — such force as is defined in article 634, or such threats as are described in article 635, or by the use of such fraud as is named in article 636. The rape defined in plain language — that *Page 432 pertaining to the carnal knowledge of a girl under 15 years of age — has but one element in common with that first defined by the Code, which is the act of carnally knowing the woman or female. In the case of the girl, no force, no threats, no fraud is required, nor must the act be without the consent of the girl. In the first, all of these are required. There must be force, threats, or fraud, such as is described by articles 634, 635, and 636; and the act must be without the consent of the woman. The Legislature could have omitted to name this offense altogether, or could have with greater propriety christened it "adultery" or "fornication," as the case might be, and punished it as it saw fit, because the incongruity in the names, when read in the light of the elements of the respective offenses, is not so great as that between the two so-called "rapes." Now, acts and omissions can be defined in plain language, — forbidden, with punishments assessed, — without giving to them any names. Let us illustrate: "Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being, within this State, with malice aforethought, shall be punished by death or confinement in the penitentiary not less than five years." This act constitutes an offense, to which a punishment is affixed, — as much so as if the name "murder" had been given thereto. "Every person who shall fraudulently take from the possession of the owner thereof, corporeal personal property, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person so taking, shall be punished," — assessing the punishment. These acts would constitute larceny at common law, and theft by our Code, because they are so called. But without a name they would constitute an offense punishable just the same as if named "larceny" or "theft." Article 877, Penal Code, calls the conversion of personal property of another, when the possession thereof has been obtained by virtue of a contract of hiring or borrowing, etc., "theft." These acts did not constitute larceny at common law, nor theft under article 858. But the Legislature had the right to name that "theft." which was before, at common law and in this State nothing but a breach of trust, unless the accused intended the conversion at the time he acquired possession of the property. These illustrations will suffice to show that the name given to an offense is no index to its real elements. But, notwithstanding this, the student of law will find, by an investigation of this subject, that the illogical reasoning springs from the fact that the crime is named "rape." The carnal knowledge of a girl under the age of 15 years is denounced as a crime. The crime is named "rape." All rape includes an assault. Therefore a person can be guilty of an assault with intent to rape the girl, she consenting. Let its suppose the Legislature had seen fit to name this offense "adultery" or "fornication," as it would have had the right to have done; the argument above would have never been heard of, or seen in an opinion. We desire to add nothing further on the subject of names. *Page 433
Now, in treating this question, the authorities we have read do not discuss what constitutes an assault. They assume an assault, because the consummated act is prohibited. When we turn to the English cases, and to the case of Smith v. State, supra, we find it well settled that: "To bring the case within the definition of an assault with intent to rape, there must have been not only an intent to commit a rape, but that intent must have been manifested by an assault upon the person intended to be ravished. The statute requires both ingredients, and we can not dispense with either. An assault implies force upon one side, and repulsion or want of assent upon the other. The crime of rape at common law necessarily included an assault, but the rape defined and punished by the last clause of section 5 (1 Swan C. St., p. 404) does not require an assault." The learned judge in the Smith Case refers to an act of the Legislature prohibiting carnal intercourse with a girl under 10 years of age, which reads: "If any male person of the age of 17 years, and upward, shall carnally know and abuse any female child under the age of 10 years, with her consent, every such person so offending, shall be deemed guilty of a rape, and, upon conviction thereof, shall be imprisoned in the penitentiary," etc. Now, it must be borne in mind that we have no common law offense in this State. No act or omission, however hurtful or immoral in its tendency, is punishable as a crime in Texas unless such act or omission is specifically enjoined or prohibited by the statute laws of this State. The Legislature has declared that if a person shall have carnal intercourse with a girl under 15 years of age, with or without her consent, he shall be punished. This is very clear and explicit. The act punishes the consummated offense. It does nothing else. It says nothing about an assault with intent to rape, the girl consenting. In order to convict appellant, we must rely upon the provision of the statute which punishes an assault with intent to rape. When we consult that statute, and other statutes upon the subject, we are led inevitably to the conclusion that it had reference to rape by force. Why could not the Legislature prohibit the consummated act, without intending to punish for an attempt to commit the act? In other words, we are of opinion that the Legislature simply desired to punish the completed act, and nothing more. Let us suppose that the age of consent is raised to 18 or 20 years; if we are wrong in our contention, and the reasoning of the opinions, holding that there is an assault, the girl consenting, is correct, then we do not look to the nature and elements of an assault, but we look simply to the age of the girl. To-day it would not be contended for a moment that a person could be guilty of an assault upon a girl over 15 years of age, she consenting. Tomorrow, if the age is elevated, by the principles enunciated in some of these opinions supporting an view, it would be held that there was an assault. We can not agree to such a doctrine. Such a method of making crimes is unknown in Texas, because "the design of enacting our Code is to define in plain language every offense against the laws of this State, and to affix to each offense its proper punishment." This is the *Page 434 first article of our Penal Code. Assault and battery imply violence and force upon one side, and objections, repulsions, or want of consent on the other. Now, we have that which was not an assault, containing no elements of an assault, declared so by all authorities, made an assault simply by prohibiting carnal intercourse with a girl under 15 years of age, she consenting. But before this statute was enacted, elevating the age of consent to 15 years, all agree that there would have been no assault, the girl consenting, in doing the very acts for which the accused is now convicted of an assault. This is not defining the offense in plain language; it is evolving offenses by construction; and we can not agree to such a method of manufacturing offenses in Texas.
Let us extend this doctrine: The strength of the opposite side of this question consists, as we have stated above, in this proposition: That as the law prohibits, denounces, and punishes the completed act of carnal intercourse, the violence consists in the carnal intercourse, and that, therefore, an attempt, constituting an assault without consent, would be an assault with consent, because the girl can not, in law, consent. We have seen that this principle has been applied to cases in which the accused was charged with assault with intent to rape females under a certain age. It was applied in England, in the lower court, to cases in which the law prohibited intercourse with a girl between 10 and 12 years of age; but when the cases reached the high courts of England the judgments were invariably reversed, if the girl consented, because there was no assault. Now, if the theory above stated be correct, whenever a party attempts to do that which is prohibited upon the person of another he would be guilty of an assault. Take the case of incest. The law is emphatic, and denounces, in clear and unmistakable terms, carnal intercourse between persons bearing certain relations one to the other. Suppose there was an attempt, both parties consenting. Who would contend for a moment that such an attempt would be an assault? Take the case of adultery or fornication. The law denounces the consummated act. Suppose A and B are charged with adultery. They are both consenting, but the act is not consummated. They are both willing to consummate the act, — perhaps in bed together, fondling one another, — but are interrupted. Why not hold that they would be guilty of an assault to commit adultery or fornication, as the case may be? Take the case of seduction. Both parties are willing, but the act is not consummated, but the parties approach near enough thereto to be guilty of an assault, if such a thing could be possible. Whoever heard of an assault with intent to seduce a woman? So with kidnaping a person under 17 years of age, such person consenting, and abducting a female under the age of 14 years, she consenting thereto. Now, while it would be abduction whether she consented or not, an attempt to consummate the crime would be an assault, if the proposition upon which rest all of the authorities holding adversely be correct. Now, in all these cases the law is as emphatic in the denunciation of the completed act as in the case of carnal knowledge of a girl under *Page 435 15 years of age. These illustrations demonstrate the utter inconsistency of the proposition; and, as we have before stated, it would never be supposed for a moment that a party could be guilty of assault to commit abduction, kidnaping, fornication, adultery, incest, or seduction, the female consenting. Suppose the party (an adult male) be charged with aggravated assault upon a female, and the proof shows that the female consented to all that was done. The accused would insist upon the defense that the female consented. The State would reply that she could not consent. Why? Because the law prohibits, with a penalty, the completed act. "Thou shalt not commit adultery" is our law, as well as the law of the Bible. Incest is prohibited, seduction is prohibited, and so are kidnaping and adduction, in just as strong language as carnal knowledge of a girl under 15 years of age, with or without her consent. If we hold, therefore, that there is an assault, the girl consenting, we would be bound to sustain every conviction of an assault, the attempt being to seduce, to commit incest, adultery, fornication, kidnaping, or abduction, whether consenting or not; for as they can not consent, in law, under the reasoning of the adverse cases, the case would stand as if they resisted to the fullest extent. We have no such an offense as an assault with intent to commit seduction, fornication, adultery, abduction, or incest. But we have an offense known as an aggravated assault and battery and an assault. Let us take incest. A is on trial for an aggravated, assault and battery. A is an adult male; B, the woman, is a daughter of A. The proof shows that they were both willing to have sexual intercourse with each other. They were in bed with one another. A was attempting to penetrate the woman, but was prevented, not by the woman, but some other cause. Under this state of facts, A contends that there was no assault, because the woman was consenting. The State replies that she could not consent, that her consent would not prevent the completed act from being a felony, that the law prohibited her consent, and that if the act had been consummated, she consenting thereto, she would be guilty of a felony. The completed act of incest being forbidden, in plain language, with punishment annexed, and A committing acts constituting an assault and battery, his daughter not consenting thereto, why is A not guilty of an aggravated assault and battery, she consenting? And why would not the daughter be guilty of simple assault and battery upon her father, for he could not consent? We have made this illustration for the purpose of demonstrating the fallacy of the position upon which rests the conclusion reached by the cases adverse to the views we have taken of the question under discussion. We would suggest to the Legislature the propriety of passing a law making an attempt to have carnal knowledge of a female under the age of 15 years, with her consent, a crime. We are of opinion that the judgment should be reversed and the prosecution dismissed, and it is so ordered.
Reversed and dismissed. *Page 436
June 28, 1898.