The opinion of the majority of the court asserts the proposition that we have no law on our statute books authorizing a conviction for an assault with intent to rape upon a female under the age of 15 years, she consenting. To this proposition I can not assent. As I understand the opinion, it is predicted upon the idea that this offense is not defined by our statutes. I heartily agree with my brethren that there can be no offense, except it is defined in the Penal Code, yet I believe that the Code does define this offense. I quote those portions of our statute (Penal Code) bearing on this subject: Article 633 reads: "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." Article 631: "The definition of 'force' as applicable to assault and battery, applies to the crime of rape, and it must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties, and other circumstances of the case." Article 608: "If any person shall assault a woman with intent to commit the offense of rape, he shall be punished," etc. Article 587 defines assault and battery as follows: "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 a threatening gesture showing in itself or by words accompanying it an immediate intention, coupled with an ability to commit a battery, is an assault." These, I believe, are all the statutes necessary to be quoted in order to properly understand this question.
It is conceded that, if the force used would constitute an assault, then this offense could be made out under our statute; but it is insisted that the assault can not be made upon a person consenting. We are cited to McClain on this subject; and it is said that while the text of this writer (volume 1, section 464) states the doctrine that the majority of the courts of the American States hold that an assault with intent to rape can be committed on a female under the age of consent, she consenting, yet that the authorities cited do not sustain him. I have examined those authorities, and I can not give my assent to this statement. In order to present the doctrine as stated by McClain clearly, I will quote so much of said section 464 as refers to this subject: "The general rule applicable in other assaults is applicable here, that there can be no where the party complaining was assenting to what was proposed. In England this doctrine has been applied also to cases of attempt to have carnal knowledge of a female child under the age of consent, it being considered that although, by statute, such connection is criminal, without regard to the consent of the child, yet that the consent negatives the element of assault. Therefore, in England, where, the age of consent being fixed at 10 *Page 437 years, but the age of puberty being recognized as 12 years in the case of a female, the connection with a female child between the ages of 10 and 12 by consent was neither rape nor carnal abuse of a female child, but a misdemeanor only, the attempt;" to commit such misdemeanor was not punishable as an assault;" citing Reg. v. Martin, 9 Car. P., 213; Same v. Johnson, Leigh C., 632; Same v. Beale, L. R. 1 Crown Cas., 10. "This doctrine is recognized in some of the States of the Union, and consent, even of a child, will prevent the attempt to have carnal connection with her from being an assault, although the completed act would be criminal;" citing State v. Pickett, 11 Nev. 255; Whitcher v. State, 2 Wn. St., 286, 26 Pac. Rep., 268. "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;" citing 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. "But where, as is the rule in most States, the connection with a female child under the age of consent is considered as rape, it 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. In such a case, according to other authorities, the doctrine that a child under the age of consent can not give a valid assent to an act of intercourse is applicable also to the assault;" citing People v. McDonald, 9 Mich. 150; Fizell v. State, 25 Wis. 364; State v. Meinhart, 73 Mo., 562; State v. Wheat, 63 Vt. 673, 22 A. 720; Davis v. State, 31 Neb., 247, 47 N.W. Rep., 854; Murphy v. State, 120 Ind. 115, 22 N.E. Rep., 106; State v. Newton, 44 Iowa 45; Territory v. Keyes, 5 Dak., 244, 38 N.W. Rep., 440; State v. Johnston,76 N.C. 209; Glover v. Com., 86 Va. 382, 10 S.E. Rep., 420; McKinny v. State, 29 Fla. 565, 10 So. Rep., 732. To these I add State v. West, 39 Minn. 321, 40 N.W. Rep., 249; Hays v. People, 1 Hill, 351.
It occurs to me that the above is a fair statement of the propositions, and the authorities thereunder are accurately marshaled. It is shown therefrom that where the statutes of the various States make the completed offense of carnal intercourse with a female child under the age of consent rape, whether she consents or not, a vast majority of the American courts hold that an attempt to have intercourse with such female constitutes an assault, although she gives her assent, on the ground that she is incapable of giving such assent. Against these are marshaled authorities from only four States. However, we are referred to a number of English authorities which hold the contrary doctrine. I might reply to this, in the language of the Cline Case, "that what of the common law we have is by adoption, not by inheritance, and its standing with us is solely by legislative enactment" (36 Texas Criminal Reports, 348), or at least I prefer to invoke the rules of construction applied to similar statutory provisions as enunciated by the courts of last resort of our sister States, especially when those rules appear to me in consonance with right reason. *Page 438 But, outside of authority, I propose to meet the argument of the venerable presiding judge who wrote the opinion. He says: "The only question is, if the girl consents, can there, in the very nature of things, be an assault? Concede the assault, and 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." And again: "Assault and battery imply violence and force upon one side, and objections, repulsions, or want of consent on the other." Now, Mr. Bishop, for whom by brother has great partiality, does not agree with this contention. He says: "Private persons can not license crimes, and it is no excuse for the wrongdoer that he had anybody's permission." 1 Bish. New Cr. Law, sec. 258. And again, in treating of consent unduly obtained, he says. "If in this case the consent is obtained through fraud, or if the person, from tender years or other cause, is incapable of consenting, the law deems that there was no consent." Sec. 261, subdiv. 1. And, speaking of consent obtained by fraud, the same author says: "Still the carnal act, under these circumstances, is in law an assault." Id., subdiv. 2. In volume 2, section 1120, he says: "That force must be actual or constructive in rape. And wherever there is a carnal connection, and no consent in fact, fraudulently obtained or otherwise, there is in the act itself all the force which the law demands as an element in this crime." And then he goes on to apply this rule to women idiotic, or rendered unconscious from drink. In all these cases the question of consent vel non is discussed; and we can see no difference between consent under such circumstances, and where the female is incapacitated from consenting on account of nonage. In section 1124 he goes so far as to say: "If the girl is very young, and not enlightened on the question, the judge and jury will demand less clear opposition than in the case of an older and intelligent female, or even convict where there is no apparent opposition."
This question of whether or not, in this character of case, an assault has been committed on the girl under the age of consent, — she giving her assent to what was done, — has been before the courts of a number of States. In Hays v. People, supra, it was said "that, the assent of such an infant being void as to the principal crime, it is equally so in respect to the incipient advances of the offender. That the infant consented to, or even aided in, the prisoner's attempt, can not, therefore, as in the case of an adult, be alleged in his favor, any more than if he had consummated his purpose. The case submitted to the jury was that of a man, having another in his power and within reach, threatening and exerting the means to accomplish meditated violence upon her person. This is clearly an assault, within all the authorities. An assault is defined by these to be an attempt, with force or violence, to do a corporal injury to another, and may consist of any act, tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability of using actual violence against the person." In Murphy *Page 439 v. State, 120 Indiana, 115, 22 Northeastern Reporter, 106, the court says: "Whenever sexual intercourse is attempted with a female under 12 years of age, whether with or without her consent, there exists a felonious intent on the part of the male; and if the attempt miscarried, but in what there is done there is a touching of the person of a female, it is an unlawful touching in a rude and insolent manner, and constitutes an assault and battery, and with a felonious intent which is present, and is an assault and battery with intent to commit a felony." In Territory v. Keyes, 5 Dakota, 246, 250, 38 Northwestern Reporter, 440, 441, this is the language: "It was not necessary to allege that the assault was without the consent of the prosecuting witness, for the reason she was under the age of 10 years, and, in law, could not consent. It was not necessary to allege that the act was done with force; for the assault being charged, and the female being under the age of 10 years, force is necessarily implied. It is not necessary to set out in the indictment more than the ultimate facts to be proven," etc. And again: "The question here involved has frequently been before the courts of England and this country, and, while the English courts have almost uniformly held that consent is no defense to the substantive crime when the child is under the age of 10 years, it must be stated that those courts, prior to the Act of Parliament in 1880, almost invariably held that consent of such child is a good defense to the charge of assault with intent to commit the crime. As to the principal crime the decisions of the courts of this country are in harmony with those of England, but as to the incipient crime there is a decided conflict. The difference of opinion in the courts upon this question has arisen from the different answers given by the respective courts to the following question: Can there be an assault, as a matter of law, when there is a formal consent, and the substantive crime is not accomplished? When it is remembered that the completed offense is but a continuation or aggravation of the felonious assault, in law, and it being conceded by all that, when accomplished, the child's consent does not eradicate the assault, in law, by what principle of law, logic, or reason can it be maintained that such consent eradicates the assault, in law, as to the incipient crime? Though the child formally and apparently consent, — nay, even though she solicited the act, — yet in reality, and in law, it is not consent. Therefore, we think that the trial court was right in excluding the evidence as to whether or not the child consented, and that there was no error in the charge of the court upon the question of consent." The same question has been before the courts of this State, and the decisions of this court harmonize with the authorities above cited. See Hill v. State, 37 Tex.Crim. Rep.; Allen v. State, 36 Tex.Crim. Rep.; Callison v. State,37 Tex. Crim. 211; Edwards v. State, 37 Tex.Crim. Rep.. The last case was by the learned judge who wrote the opinion in this case; and I would say, in this connection that, if the rule now laid down is the law, it is unfortunate for these convicted persons that it was not ascertained sooner. Our statute, in defining an assault or an assault and battery, nowhere uses the language that the act must *Page 440 be done without the consent of the assaulted party; and I take it that it will not be seriously contended that, as to the graver grades of assault, consent would strip the case of its criminality. See King v. State, 4 Texas Crim. App., 54. Nor do I believe, under the definition of assault and battery as contained in our Code, that one person could consent for another to whip him, and that it would be a good defense to the charge if the party had given his consent. But I am speaking of cases now in which the party was capable of exercising a volition, and of choosing whether he would or not. I am not speaking of one whom the law considers non compos, — incapable under any circumstances of giving consent to the act; that is, the completed act. Let me illustrate: Suppose a child 4 or 5 years of age consent for a party to have carnal intercourse with her. He lays her down upon the ground, with her consent. He raises her clothes. He pulls his pants down, and takes out his penis, and is over the child, and is evidently about to copulate with her. He is detected. Here we have all the incipient elements of rape, but we have not the completed act. But it is said that there is no offense, because the child was consenting to what was done; that is, consenting to what I insist is an assault, because she had no will power to submit to what was done. But let me go a step further with this illustration: Suppose that, in order to penetrate his victim, he should take his hands and fingers, and lay hold of the parts of the child to effect an entrance, and he lacerated and tore her. In the supposed case he has not used his penis, and, of course, there would be no rape. But would it be seriously contended that, because she assented to what was done, there was no assault? But it is said that she did not consent for him to tear her with his fingers. I reply that the child had given her consent to the assault, and the fact that he used more force than she expected him to use would be no answer to the proposition. According to the doctrine laid down by the majority of the court, she had consented to the use of force, and therefore there could be no assault. On the contrary, I maintain that he committed an assault upon the child from the beginning, simply because she could not yield her consent to what was being done.
Now, let me recur for a moment to our statute. In an assault with intent to rape, the same character of force must be used as is used in the crime of rape. This force must be applicable to an assault and battery, and such as might reasonably be supposed sufficient to overcome resistance; taking into consideration the relative strength of the parties, and all the other circumstances of the case. The doing of any violence to the person of another, with intent to injure (even the laying of one's hands upon the person with such intent), is, under our law, an assault and battery. The intent here is to have carnal intercourse with the child; consequently, to injure her. The completed crime, all concede, would be rape, under our statute; but it is claimed that, because the child consents that the carnal intercourse should take place, none of the incipient stages, short of the consummated act, would be an assault, no matter how much violence was used, short of the consummated act of intercourse. *Page 441 This doctrine, to my mind, is not only unsound, but is dangerous. Of course, there must be force used, and the same kind of force as is used in an assault or an assault and battery; and this must be sufficient to overcome resistance, taking into consideration the relative strength of the parties, and other circumstances of the case. Now, what other circumstances of the case? Evidently, that assaulting the party was a strong, vigorous man, and that the prosecutrix was a helpless child, ignorant, having no mind as to the enormity of the offense, and incapable of yielding her consent. Under such circumstances, I insist that when an adult male person takes hold of a child, and lays her down, pulls up her clothes, gets on top of her, and is making preparation to penetrate her female organ with his male organ, and is interrupted before the accomplishment, of his purpose, he is guilty of an assault with intent to rape. The acts indicated are all acts of force, — the same character of force used in an assault and battery, — and constitute, on the part of the assailant, all of the elements of an assault and battery: and the fact that she yielded her assent is immaterial, as she could not consent to the assault on her. The views expressed by the court, if logically carried out, might leave the assaulted party, under such circumstances, guilty of an attempt to rape, under our statute, inasmuch as it is provided that in an attempt to commit a rape there must be the same character of force used, but it must fall short of an assault. But in Warren v. State, 38 Texas Criminal Reports, 152, the learned judge who wrote the opinion in this case held that there could be no such thing as an attempt to commit a rape, where the party was under the age of consent, and yielded her consent to what was being done. So, under the doctrine laid down in these two cases, it is now no offense to attempt to have intercourse with a child of immature years, nor can such a child be assaulted with that intent; that is, where she consents. While opinion of the majority of the court is very able, — bringing out full measure the strength of the position, — I can not bring my mind to believe that there is no law on our statute books for the punishment of such offenders. On the contrary, it appears to me that the attempt is here to construe away the law, and to create a hiatus where there is none. I agree with the American authorities on this subject, because I believe them sound, and in consonance with a proper construction of our statutes.