The appellant was tried and convicted in the District Court of Collin County, at the October Term, 1894, of the offense of attempt to rape by fraud, with his punishment assessed at confinement in the penitentiary for a term of two years, and from the judgment and sentence in the case he prosecutes this appeal.
The appellant made a motion to quash the indictment below, which was overruled by the court, and he assigns this as error. The indictment was in three counts, but the conviction being under the last, it is only necessary to quote that, which is as follows: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present, that the said Aldridge Franklin did then and there, with the intent then and there to commit the offense of rape upon the said D.M. Pennington, a married woman, attempt by fraud to have carnal knowledge of the said D.M. Pennington." The points made by appellant are, (1) that the indictment should allege the facts necessary to constitute the fraud; (2) that the name of the prosecutrix's husband should be set out.
With reference to the first proposition, it is true in civil proceedings, as insisted by appellant, where fraud is relied on as a cause of action or defense, it is not enough simply to charge fraud; the fact constituting the fraud must be set out. But this rule is not believed to be the same in criminal proceedings; at least, it is not of general application. Of course, there may be cases where this would be necessary. In all cases of theft it is sufficient to state that the act was fraudulently done, and this authorizes proof of a variety of acts constituting the fraudulent intent. And even where the theft of property is by means of a false pretext, the pretext need not be averred, but the party can be convicted under an ordinary indictment for theft. Morrison v. The State, 17 Texas Crim. App., 37. And in burglary, it is sufficient to *Page 210 allege that the entry was by fraud, without stating the character of fraud or the facts that constitute the fraud. Neiderluck v. The State, 23 Texas Crim. App., 38. And it is believed that the same rule is applicable in a case of rape or attempt to rape, and such has been the course of practice in this State. King v. The State, 22 Texas Crim. App., 652; Milton v. The State, 23 Texas Crim. App., 204; Melton v. The State, 24 Texas Crim. App., 286. If this be the rule in the cases cited, much more should it be the rule in a case of this character, where the fraud can only be of the character named by the statutes. Our statute, in defining the offense of rape by fraud, defines the fraud which will constitute such offense, as follows: "The fraud must consist in the use of some stratagem by which the woman is induced to believe that the offender is her husband, or in administering without her knowledge or consent some substance producing unnatural sexual desire," etc. Penal Code, art. 531. An attempt is an endeavor to accomplish a crime carried beyond mere preparation, but falling short of the ultimate design in any part of it. Lovett v. The State,19 Tex. 174. While it would be better practice to at least set out enough in the indictment to indicate which particular kind of fraud the prosecution relied on, whether by personating the husband or by administering some substance to the female, yet in our opinion a general indictment charging an attempt to rape by fraud would authorize the proof of either means.
As to the objection urged that the name of the husband should have been set out, we think the allegation is sufficient, to wit, that she was at the time a married woman, and this would authorize proof as to the name of her husband.
The objection that an indictment for an attempt to rape is not authorized, and that a party can only be prosecuted for said offense under an indictment charging rape, has been settled heretofore by this court against the appellant's contention. Milton v. The State, 23 Texas Crim. App., 209; Melton v. The State, 24 Texas Crim. App., 286.
The appellant contends that the court erred in overruling his motion to continue or postpone the case. He made a motion to continue when the case was called for trial for the absent witnesses Mrs. E.J. Franklin and J.A. Jones, which was overruled; and subsequently, during the progress of the trial, on the return of the writ of attachment by the sheriff of Franklin County into court, showing that Mrs. Franklin was sick and unable to attend, he renewed his application, and this too was overruled by the court. The indictment in this case was presented and filed on the 21st of April, 1894, the defendant then being in custody. Process was issued in this case on the 5th day of November, 1894, just three days prior to the trial, and no excuse is shown for this delay. As to the original application, no sufficient diligence was shown. While the case was being tried, the sheriff of Franklin County returned the writ of attachment, showing that Mrs. Franklin was sick and unable to be brought into court, and the defendant then renewed *Page 211 his application. It will be observed that the original motion was renewed, and in that it is stated, that defendant expected to prove by the witness Jones that defendant bore a good reputation in the neighborhood as a law-abiding citizen; and, as to Mrs. Franklin, that he expected to prove by her that defendant lived with her at the time of the alleged commission of the offense, one or two hundred yards from the house of the prosecutrix, D.M. Pennington, and defendant had so lived with her for a long time previous thereto; that witness had frequently seen the defendant and prosecutrix together alone in conversation, and that they were very intimate and friendly with each other; that defendant would frequently go to the house of the prosecutrix when there was no one there but her and her very small children, at her request; and that on several occasions he had gone and staid all night at the house of prosecutrix when there was no one but her and her small children there; and that on the evening preceding the night of the alleged offense, defendant was seen in secret and private conversation with the prosecutrix at witness' house.
On the motion for a new trial, defendant presented the affidavit of Jones, that he was present when the conversation between defendant and E.P. Billington, in the road, on the Sunday after the alleged offense, occurred, and that he heard the conversation between Billington and defendant in regard to the accusation against him; that said defendant stated at the time, that it was not the first time he had been in the house of D.M. Pennington; and that defendant never at any time stated that he tried to fool D.M. Pennington by trying to make her believe that it was her husband. This testimony was in contradiction of the testimony of Billington, who testified on the trial, that defendant had stated on the occasion referred to that he pushed the door open, and went in the room of Pennington, and that he then endeavored to make said Pennington believe he was her husband. The witness Mrs. Franklin's affidavit states that she will testify, that on the evening of the night before the alleged offense, Mrs. D.M. Pennington came to her house; that she invited the defendant to take supper with her; and that she also invited the defendant to spend the night with her, which he refused to do; that a person can stand in the yard of her (witness') home and converse with a person in the yard of the prosecutrix's home; that the witness was at home the night of the alleged offense, and did not hear Mrs. Pennington (the prosecutrix) call; that Aldridge Franklin, the defendant, left home early that night, and returned about daylight the next morning; that witness was at the house of the prosecutrix the next day, and that she told witness that she was asleep when defendant entered the bed and put his arms about her, and did not know he was in the room till then; that she awoke, and smelt his breath, and knew it was not her husband.
It will be seen from this statement of the contents of the motion for a continuance, and of the affidavits in connection with the motion for a new trial, that, as to the witness Jones, the testimony proposed to *Page 212 be adduced from him is entirely different from his stated evidence on which a continuance was sought. It is not stated to be newly discovered testimony, nor is it shown that defendant was taken by surprise by the testimony of Billington as to what was said in the consultation between him and defendant, and that he for the first time was put upon notice as to what he would testify, or that he was surprised thereby, and required the testimony of Jones to rebut said testimony, and that the necessity therefor was for the first time apparent. This should have been done. And the same observation applies to a part of the testimony of Mrs. Franklin. In the application for a continuance it is stated, that on the evening before the night of the alleged offense, the witness Mrs. Franklin saw defendant and the prosecutrix at her house in secret and private conversation, but the subject of same is not stated; while in her affidavit for a new trial this secret conversation is disclosed, to wit, that the prosecutrix invited the defendant to take supper with her, and to stay all night with her. Yet it is not shown that this is newly discovered evidence, or, if newly discovered, no excuse is shown why it was not discovered sooner. The defendant is shown to have been under indictment for this charge for some time, and certainly he could have by any sort of diligence ascertained all that his mother knew in regard to the charge. The other facts proposed to be proven by Mrs. Franklin do not occur to us to be material. The distance from her house to the house of the prosecutrix could have been proven by other witnesses, and the fact that she did not hear Mrs. Pennington call that night is mere negative testimony. The witness Mrs. Pennington says she called to Mrs. Franklin, but she does not testify that she got any response from Mrs. Franklin.
The appellant further insists, that the case should be reversed because of the charge of the court in defining fraud, and in not requiring the jury to find that Mrs. Pennington believed that defendant was her husband. The court charged the jury: "If they believed that defendant did attempt through fraud to have and obtain carnal knowledge of the person of D.M. Pennington, without her consent and against her will, by then and there fraudulently entering the bedroom of D.M. Pennington, and in the night-time, then and there trying to deceive her by attempting to speak and act like her husband, Henry Pennington," etc. The court had previously defined fraud in the language of the statute, necessary to constitute a rape, to consist in the use of some stratagem by which the woman is induced to believe that the offender is her husband. Mark that the indictment here is for an attempt, and not for a consummated rape. In the latter the accomplishment of the purpose must be by fraud, and the fraud must be of such a character as imposes on the woman to the extent of inducing her to believe that the offender is her husband. If the practiced fraud should fall short of this, and the woman undeceived should consent, it would be no rape; or if she, discovering the imposition, should resist, and the offender, in the prosecution of his purpose, should overcome *Page 213 her by assault and violence, it would then be rape by force. The charge here is an attempt to rape by fraud, and the gravamen of the offense does not depend on the belief of the female which apprehends a consummated rape, but on the fraudulent acts of the defendant in personating the husband of the prosecutrix. While an attempt can only be made by an overt act done in pursuance and in furtherance of the design to commit the offense, yet such overt act need not be the last proximate act prior to the commission of the offense attempted.
The defendant here knew of the absence of the husband of the prosecutrix, and he went from his house, near by to her home, and entered her bedroom. The prosecutrix, hearing a noise in the room, was awakened, and said, "Is that you, Henry?" and defendant responded, "Yes," or to that effect, and began pulling off his clothes. After getting his coat and shoes off, he came round the bed near where the prosecutrix's babe was sleeping, and she called again, "Is that you, Henry?" (meaning her husband) and he again responded in the affirmative, but as he moved around the cradle, the prosecutrix discovered by his voice and the light shining through the window that it was not her husband, and she about the same time recognized the person as the defendant, and she then said, "It is not Henry. You get out of here." Defendant persisted, and got in bed with the prosecutrix, and caught her in his arms, and insisted on having carnal knowledge of her, but she jerked loose from him and ran out in the yard. As she ran out of the house, defendant said to her, "Come back, and I will tell you who I am;" but she replied, "I know who you are." This was substantially the testimony of the State as to the attempt, and to our minds, if an attempt to commit a rape in personating the husband of a woman by the use of some stratagem intended to mislead and deceive the woman into the belief that the party is her husband can be shown, under our statutes, the facts of this case clearly make out such a case, and the charge of the court was pertinent and responsive to the facts proven, and in our opinion, the contention of the defendant is without any basis to support it.
While the remarks of the counsel may be subject to some criticism, yet they are not of that character to require a reversal of this case.
The judgment is affirmed.
Affirmed.
Judges all present and concurring. *Page 214