Appellant was convicted of rape, his punishment being assessed at death. I cannot agree with my brethren in their conclusion that the judgment should be affirmed.
When the case was called for trial appellant's plea of not guilty to the charge of rape was entered, and the plea of guilty to the offense of assault with intent to rape also entered. The court, after charging with reference to the crime of rape, proceeded to instruct the jury that if they had a reasonable doubt as to whether the defendant was guilty of rape they should acquit him, and find him guilty of assault with intent to commit rape upon his plea of guilty thereto, and assess his punishment at confinement in the penitentiary for some period of years not less than two. Several exceptions were urged to this charge, being upon the weight of the evidence, the assumed guilt of the defendant, and in addition that the plea of guilty entered to the offense of assault *Page 460 to commit rape was not in accordance with the statute, and, therefore, should have been disregarded. That portion of the judgment with reference to the plea of guilty is, as follows: "* * * and the defendant entered his plea of guilty to the offense of assault with intent to rape, and it appearing to the court that defendant is sane and not influenced by any consideration of fear, or delusive hope of pardon prompting him to confess his guilt herein, and the court having duly admonished said defendant as to the consequences in law of such plea; yet the defendant persisted in entering his said plea of guilty thereto." This plea under the provisions of our statute, is incomplete and insufficient, that is, the adjudication of the court fails to comply with the statute in regard to pleas of guilty. Article 554, Code Criminal Procedure, is as follows: "If the defendant plead guilty he shall be admonished by the court of the consequences; and no such plea shall be received unless it plainly appear that he is sane, and is uninfluenced by any consideration of fear by any persuasion or delusive hope of pardon prompting him to confess his guilt." Recurring to recitals of the judgment I find that it fails to insert therein that portion of the above statute with reference to his being uninfluenced "by any persuasion." This is as an essential requisite as any other provision of the statute. The validity of a plea of guilty is dependent upon at least three indispensable conditions: (1) That the defendant be admonished by the trial court of the consequences of his plea: (2) That it must plainly appear that he is sane, and (3) it must plainly appear that he is uninfluenced by any consideration of fear, by any persuasion or delusive hope of pardon prompting him to confess his guilt. It has been universally held that these prerequisite conditions of the statute in regard to the sufficiency of the plea must be made manifest of record and cannot be supplied by inference, intendment or presumption. See Saunders v. State, 10 Texas Crim. App., 336; Giles v. State, 23 Texas Crim. App., 281. It has been further held that the judgment upon a plea of guilty will be reversed on appeal unless the record shows that the prerequisite conditions above named were followed by the trial court. See Wallace v. State, 10 Texas Crim. App., 407; Frosh v. State, 11 Texas Crim. App., 280; Harris v. State, 17 Texas Crim. App., 559; Paul v. State, 17 Texas Crim. App., 583; Turner v. State, 17 Texas Crim. App., 587; Sanders v. State, 18 Texas Crim. App., 372; Evers v. State, 32 Tex.Crim. Rep., and Coleman v. State, 35 Tex.Crim. Rep.. Had the judgment failed to state that the defendant was sane, the plea would have been insufficient. If it had failed to state that he was uninfluenced by delusive hope of pardon, it would have been insufficient. It would seem, therefore, to follow that a failure to show that he was uninfluenced by persuasion would necessarily show the law had not been followed, and the plea of guilty was improperly entered, and that part of the judgment void. In order for a court to assume, as it did in this case, that appellant had pleaded guilty, when instructing the jury the judgment must be complete, *Page 461 showing all the prerequisite steps had been taken to justify the assumption of the fact of the plea of guilty, even if the court, under any circumstances, could assume such a fact in charging the jury. It is not necessary here to discuss whether the court can assume and instruct the jury to convict upon a plea of guilty, even if the plea is in compliance with law, in view of article 555, Code Criminal Procedure, which requires that evidence be introduced before the jury upon the plea. It has been determined that a plea of guilty does not authorize the court to instruct the jury to convict for murder in the first degree, there being two degrees of murder, that it is within the province of the jury to determine under the facts the offense of which the accused is really guilty, if the facts, even under a plea of guilty to a murder charge, should develop manslaughter, the court should submit to the jury that phase of homicide. The facts in the case now under consideration were of sufficient importance and fully justified and required the court to submit the issue of assault with intent to rape, and even aggravated assault. Through the mouth of the witness Maddox, the officer having appellant in charge, the statements of appellant were introduced in evidence showing that he did not intend to ravish or penetrate the prosecutrix, and the doctor's testimony leaves it in serious doubt as to an actual penetration. The physician who examined the girl shortly after the alleged outrage testified: "Q. Well, do you think it would be possible for a grown man like this one here to insert his penis in the organ of that little girl without it bleeding some? A. I don't think it would have been possible, no, not in this case." The evidence shows conclusively that there was no laceration, no bleeding, and no abrasions, but it does show that the private parts were a little swollen and inflamed. I am not discussing the question of the sufficiency of the evidence, but make these recitations of the facts to show that the issue of assault with intent to rape was involved as well as evidence showing an absence on the part of appellant of an intent to commit the crime of rape. However, strong or weak this character of evidence may be, even under a plea of guilty under article 555, Code Criminal Procedure, if it is of sufficient importance to raise the issue of intent, it redounds to the benefit of the accused, and the charge should submit the issue instead of taking it away from the jury. Therefore, I am of opinion if there be no sufficient plea of guilty adjudicated in the case and the evidence suggests the issue of assault with intent to rape, the court was in error in assuming there was such intent to commit rape. If the court can assume and charge the jury to convict under a plea of guilty, then all the requisites of article 554, Code Criminal Procedure, must be complied with, and the evidence must be in accordance even under such plea of guilty as required by article 555, Code Criminal Procedure. The charge instructing the jury to convict of assault to rape if they should acquit of rape, may have had a very serious bearing upon the minds of the jury in leading them to believe that the court thought the intent existed, and he charged them it did exist, to commit *Page 462 rape in the mind of the accused when he charged them to find appellant guilty under said plea in regard to assault to rape. Under the facts, appellant's contention was that there was no intent to commit rape, and the State introduced his declarations to that effect. This charge may have influenced and doubtless did influence the jury to believe that the intent to commit rape existed in the face of the issue raised by the testimony, and they may have transferred this intent to the crime of rape when it was a contested issue on the State's testimony as shown by the evidence of the offier who testified to appellant's statements. This charge, in effect, told the jury that appellant's statement was false and to discard it. This plea of guilty being insufficient would, therefore, not authorize the court to instruct the jury as he did in regard to the intent of appellant to rape. Wherever intent is an element of the offense the charge must not assume against the accused and so charge the jury when it is a controverted issue even under a plea of guilty, especially when "not guilty" is entered as to the higher grade of offense. Therefore, I am of opinion that this charge was fully calculated to injure appellant; that it should not have been given, and exceptions thereto are well taken. The prosecutrix testified to previous connections on the part of appellant with her; she said "He would come in and he would feel of my privates with his hand, and then he would come and put his thing in mine and hug me up to him." She further testified that this was kept up for some time, and the last time it occurred was on Wednesday, the 21st of March, which is the transaction relied upon by the State in this case for a conviction. She also testified that appellant at other times would come to her and pull up her dress and insert his finger in her private parts. All these matters went before the jury. Exception was reserved to the failure of the court to limit this testimony. I think this exception was well taken under all the authorities. No election was demanded as to which transaction should form the predicate for a conviction, but the act of March 21st was relied on for conviction. There was no necessity for the admission of this testimony, and it was improper to admit it, but having limited it, the charge should have limited its effect. If appellant had previous connections with her, each act would constitute a distinct offense. These prior transactions were not necessary to prove intent, for if appellant was guilty at all, under the testimony the State had made out a case of rape or assault to rape, if the jury believed he intended to have carnal intercourse with her, and if they did not so believe, then there could be no higher offense than that of aggravated assault. If the previous acts or the insertion by appellant's finger in the private parts of the girl constituted the reason for the swollen condition of said private parts, then the act relied on to convict was not rape.
The qualification of the prosecutrix as a witness ought to have been made clearer and more certain. This remark is made in view of a recent Act of the Twenty-Ninth Legislature, page 83, which provides that "No person shall in any case be convicted of any offense committed before *Page 463 he was of the age of 9 years, except perjury, and for that only, when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath." It would seem under said statute responsibility for punishment is made the criterion of the competency of the witness. If the youthful witness can be used as such, it must be under penalties prescribed, if under 9 years of age, for the crime of perjury, and if the witness is over 9 and under 13, it would further seem that he cannot be punished for perjury or any other offense unless the witness should be amenable to punishment for perjury or such other offense, and unless the amenability for punishment is shown the testimony should be discarded, for, as I understand the act of the Legislature above cited, it makes the test for admitting the testimony the amenability to punishment for perjury if committed by the witness. The examination of the witness in this case does not meet this requirement nor attain to this standard. Again if it was doubtful as to her competency then the court should have submitted this issue in an appropriate charge, which was not done, and for which failure appellant duly reserved his exception in the motion for a new trial. This was error. I am further of the opinion that the law of aggravated assault should have been given in the charge to the jury.
I think the judgment ought to be reversed and the cause remanded, and because it was not, I respectfully dissent.