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penalties denounced by either, as appropriate to its character in reference to each. We think this distinc. tion sound, as we hold to be the entire doctrines laid down in the case above mentioned, and regard them as being in no wise in conflict with the conclusions adopted in the present case."

double punishment for delinquency at the suit of the State and at the suit of the United States. But the answer to this is that each government punishes for violation of duty to itself only. Where a person owes a duty to two sovereigns, he is amenable to both for its performance, and either may call him to account. Whether punishment inflicted by one can be pleaded in bar to a charge by the other for the same identical act need not now be decided, although considerable discussion bearing upon the subject has taken place in this court, tending to the conclusion that such a plea cannot be sustained."

Subsequently, in Moore v. Illinois, 14 How. 13, the court had under consideration the validity of a statute of the State of Illinois, in pursuance of the provisions of which the plaintiff in error had been indicted and convicted of harboring and secreting a negro slave. It was contended that the statute was in conflict with an act of Congress on the same subject. Mr. Justice Grier, in delivering the opinion of the court, said: "But, admitting that the plaintiff in error may be liable to an action, under the act of Congress, for the same acts of harboring and preventing the owner from retaking his slave, it does not follow that he would be twice punished for the same offense. An offense, in its legal signification, means the transgression of a law. A man may be compelled to make reparation in damages to the injured party, and be liable also to punish-held that the crime charged in the indictment was not

ment for a breach of the public peace, in consequence of the same act; and may be said, in common parlance, to be twice punished for the same offense. Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the State, a riot, assault or a murder, and subject the same person to a punishment, under the State laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender oannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other."

Chief Justice Taney, in the case of United States v. Almy, reported in the Quarterly Law Journal for July, 1859, at page 163, and referred to in Jetts case, 18 Gratt. 945, concludes his opinion as follows: "In maintaining the power of the United States to pass this law, it is however proper to say that as these letters with the money in them were stolen in Virginia, the party might undoubtedly have been punished in the State tribunals, according to the laws of the State, without any reference to the post-office or the act of Congress, because, from the nature of the government, the same act may be an offense against the laws of the United States and also of a State, and be punishable in both. This was considered and decided in the case of Fox v. State of Ohio, 5 Ohio U. S. Rep. 410, and in the case of United States v. Peter Marigold, 9 id. 560; and his punishment in one sovereignty is no bar to his punishment in the other."

In Ex parte Siebold, 100 U. S. 371-390, the petitioners were judges of election at different voting precincts in the city of Baltimore, at an election held in that city at which representatives in Congress were voted for, and which positions they held in pursuance of the statute of the State of Maryland. They were afterward convicted in a Circuit Court of the United States for the district of Maryland for offenses alleged to have been committed by them, respectively, whilst acting as judges at such election. The petition was denied, the court, at page 389, saying: "Another objection made is that if Congress can impose penalties for violation of State laws, the officer will be made liable to

This was followed by a brief consideration of the cases to which we have referred, and their approval. In Cross v. North Carolina, 132 U. S. 131, the plaintiffs in error were convicted, under section 1029 of the Code of North Carolina, of the forging of a promissory note, made payable to a national bank. A writ of error was sued out, upon the ground that the offense of which they were convicted was cognizable only in the courts of the United States. It is true that the court

included in section 5418 of the United States Revised Statutes, but the court, speaking through Mr. Justice Harlan, said: "The argument in behalf of the plaintiffs in error fails to give effect to the established doctrine that the same act or series of acts may constitute an offense equally against the United States and the State, subjecting the guilty party to punishment under the laws of each government. This doctrine is illustrated in United States v. Marigold, 9 How. 560, 569; Fox v. Ohio, 5 id. 410, 433; Moore v. Illinois, 14 id. 13.” The cases cited, it will be observed, not only assert concurrent jurisdiction in certain cases, but answer the contention that the application of the rule would be a violation of the constitutional provision: "No person shall be subject for the same offense to be twice put in jeopardy of life or limb."

The cases cited by the appellant are not in conflict with the position taken in those we have referred to. They hold that it is within the constitutional power of Congress to confine to the courts of the United States jurisdiction of crimes arising under the laws of the United States. Claflin v. Houseman, 93 U. S. 130; The Moses Taylor, 4 Wall. 411. And that section 711 of the Revised Statutes of the United States vested exclusive

jurisdiction in the courts of the United States to try all offenders against the laws of the United States. People v. Fonda, 62 Mich. 401; Commonwealth v. Fenton, 101 Mass. 204; Ex parte Dock Bridges, 2 Woods (U. S.), 423.

But they do not decide that, if the act which constitutes an offense against the laws of the United States be also an offense against the laws of a State, that the State court is thereby deprived of the right to try the offender for his violation of the State law.

Indeed, it could not be so decided with reference to such acts as are declared to be crimes by title 70 of the Revised Statutes of the United States, and at the same time give any effect whatever to section 5328 of that title.

In Dashing v. State, 78 Ind. 357, the court had under consideration the sections now before us, and it held that section 711, construed with section 5328, does not operate to divest the States of the right and jurisdiction to enact and enforce their own criminal laws, though the acts made criminal thereby might also be made criminal by the laws of the United States. The judgment of conviction should be affirmed. VAN BRUNT, P. J., and FOLLETT, J., concur.

Lawyer-Are you a single man?

Witness-No, Sor; Oi am a twin. - Indianapolis


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menace to the perpetuity of popular government. Legislators and courts in England and America have at all times frowned down and denounced by statutes and decisions the staking of any sum upon the result of an election. Whenever it is done, with him who has his money at stake, the question becomes one, not of the welfare and good of the government, nor one of the fitness of the individual candidates for office, but it is a question of gain and "filthy lucre," and in proportion to the size of the bet he becomes ready to influence others in improper ways to assist him in his unlawful enterprise. If Chief Justice Kent of New York looked with disfavor on the debauching of eleotions by gambling on them, eighty years ago, when the right of suffrage was restricted, and the voting population consisted of a few hundred thousand, scattered over a vast territory, much more may it be reprehended and feared when the right of suffrage is unrestricted, and the voting population will exceed twelve millions. But no homily on this subject is necessary, for by the common concensus of civilized humanity the practice of betting on elections is condemned, and in most instances severely punished, by statute.

A gaming contract being illegal and void, courts have invariably refused to interfere between the parties to the wager, who, being in pari delicto, cannot invoke the aid of the courts in carrying out their contracts. The question however presented to this court is not whether it will enforce or affirm a gambling contract, but whether it will permit one of the parties to disaffirm it. We have investigated a large number of

FLY, J. Appellee, as plaintiff, filed suit in the Justice's Court, on account for money had and received, amounting to $175, against appel'ant Lewy, who came in and moved the court to have L. P. Peck, the other appellant, made a party to the suit, which was done. Judgment was rendered in the Justice's Court in favor of appellee for the amount of his claim, and the appel-American cases, and in nearly all of them the rule is lants appealed the case to the District Court, where a like judgment was rendered for appellee. The facts. in brief, are that appellant Peck and appellee Crawford, on the day of the State and national election, 1892, made a wager with each other on the pending election for governor, each one putting into the hands of appellant Lewy as stakeholder the sum of $170. Appellee on the same day made another bet for $5 ou the gubernatorial election, and this money, with that of his competitor, was also put into Lewy's hands as stakeholder. That appellee bet appellant Peck and the other person the $175 that J. S. Hogg would be elected governor by ten thousand majority - whether over George Clark or the field is left in doubt. A few days after the election, appellee notified stakeholder Lewy not to pay his $175 over to Peck, but to give it back to him. That Lewy declined to do this, and had never paid the money over to any one, but still had it. The terms of the bet, or who was winner or loser, can cut no figure in the decision of this case. The whole transaction was clearly against public policy, and in open violation of one of the penal statutes of Texas. In every State and government wherever the right of suf frage has been retained by the people the deleterious and degrading effect of any species of gambling upon the result of a popular election has been recognized and unqualifiedly condemned. More especially is this true in a government like ours, where the stability and efficacy of the government rests upon the purity of the ballot-box, and where every thing that tends in the slightest to degrade the individual voter or to taint by bribery or corrupt influences the verdict of the masses of the people is a blow at popular government. The very theory of a popular form of government resting on the unpurchased will of the majority, is that the person elected to office is chosen by the free will of a majority of voters free to pass upon the qualification of the respective candidates, and free to act uninfluenced by bribes or sinister motives. This may be simply theory, but, unless this theoretical conception of popular elections is practically put into operation, so far as the vices, imperfections and errors of mankind will permit, popular institutions must and will become a failure. The corruption of any oue voter is a direct

laid down that, as long as the money is in the hands of
a stakeholder, either party has a right to demand his
part of the money, and, if refused, can maintain an
action at law, whether demand is made on the stake-
holder before or after the happening of the contingency
upon which the wager is suspended. This is the Eng-
lish rule, and is fortified by age, and hallowed by prece
dent. So far as our own courts are concerned, it is a
case of first impression, as neither the direct question
nor one similar to it has ever been presented for adju-
dication in this State. This being true, it may be in-
teresting, if not profitable, to review some of the onses
on the subject, which have come under our attention,
and the number of adjudications elsewhere point to
the conclusion that the evil aimed at is widespread and
deep-seated among the American people. One of the
earliest cases to which we have had access, and one
which has been very widely and favorably cited, is the
case of Vischer v. Yates, 11 Johns. 28. The opinion in
this case
was rendered by Chief Justice Kent, the
great commentator on American law, and in a fine re-
view of English decisions he lays down the broad rule,
since followed by most courts, that courts must frown
down in every legitimate manner any unholy tamper-
ing with or corruption of the ballot; that bets on elec-
tion are illegal and void, and that courts will lend their
aid in disaffirming such contracts, and will hold the
stakeholder responsible, when notice is given by a
party to a wager that he desires to withdraw his
money. This learned judge struck the keynote that
bas in most American courts given tone to decisions on
the subject. We quote from Chief Justice Kent in the
opinion referred to: "The stakeholder ought not to be
permitted to hold the money in defiance of both par
ties. There would be no equity in such a defense, and,
if the plaintiff cannot recover back the deposit in this
case, the winner cannot recover it; for that would be
compelling the execution of an illegal contract as if it
were legal, and would at once prostrate the law that
declares such contracts illegal. The English rule is the
true rule on this subject. On the disaffirmance of the
illegal and void contract, and before it has been carried
into effect, and while the money remains in the hands
of the stakeholder, each party ought to be allowed to


withdraw his own deposit. The court will then be dealing equitably with the case. It will be answering the policy and putting a stop to the contract before it is perfected. * * The courts have gone quite far enough when they have refused to help either party, as against the other, in respect to these illegal contracts." | It is true that this decision was overruled by the "Court for the Correction of Errors," the decision being rendered by a divided court,and no court of any respectability, except perhaps that of California, has ever followed in the noisome wake of the decision of Senator Sanford, the mouthpiece of the New York court. On the other hand, the decision has been time and again repudiated, and the very doctrine held by Judge Kent was afterward approved by the New York Court of Appeals. Storey v. Brennan, 15 N. Y. 524. Senator Sanford makes his decision turn on the question of the happening of the contingency concerning which the wager is laid. We quote from his opinion as follows: "In contracts of hazard the condition of the parties, after the uncertain event has happened, is extremely different from their situation before. Before the event has happened, and while it is uncertain who will be the winner or the loser, neither is much injured, and perhaps not at all, by declaring the contract void. The parties are treated alike; neither of them can complain; and if it is necessary for the public good that the contract should not proceed further, the decision is made without any sacrifice of justice between the parties. Not so if the hazard has ceased, and the wager has been lost or won, according to contract. A very different relation between the parties then takes place. If the losing party may vacate his contract, after the event has happened and is known, he is allowed to practice fraud upon the adverse party. To allow the loser to retract his contract because he is the loser would give sanction to the grossest perfidy and injustice. If this party wins he profits by the contract, and takes the fruit of it; if be loses he abjures the contract and exonerates himself from its obligation. If he wins he holds the wager by the laws of honor; if he loses he refuses payment, or reclaims the wager, if paid by the laws of the land. According to the result he avails himself either of the laws of honor or of the laws of the land. While the event is uncertain and unknown, he stands upon the laws of honor. When it has happened, and is against him, he retires to the laws of the land. While he contracts upon the basis of hazard, he incurs no risk. While he is himself wrapped in impenetrable armor, he contends with a naked adversary. When he talks of contingency and bazard he means certainty. When he promises, he deceives; and while he pledges his faith. he betrays. It is only the loser who repents. How ever bitter and sincere his repentance may be, it is not that he has offended against public policy, but that he has lost his money. To prove the sincerity of his repentance, and as an atonement of his sin against public policy he proposes to cheat his adversary, and take back his own money after it has been lost." We are unable to see the cogency of this rule. It is not the business of courts to determine at what point in the proceeding a man must repent, for repentance has nothing to do with the solution of the question. Doubtless repentance after losing a bet is like unto that which follows a drunken debauch, shortlived, and the offspring of a disordered liver or depleted pocket; but the senator never apprehended the great truth put by Judge Kent that it was not a question of sorrow and repentance, but one of disaffirming and destroying a contract made in violation of law and morals. Neither does his rule work harm to any one, but it leaves the parties exactly where they were when the violation of the law was initiated, and no one in law or morals bas been defrauded of any thing. In Ball v. Gilbert, 12 Metc. (Mass.) 397, the case of Vischer v. Yates is approved, and the following language is employed: "We

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think the money deposited by each party was a simple, naked deposit, respecting which the agreement to pay it over to one, according to the result of the pending presidential election, and not executed by actual payment, was wholly inoperative and void; and then by implication of law the money was so deposited to the use of the depositors respectively; and that an action for money had and received would lie for each party for the amount so deposited by him." In the case of Stacy v. Foss, 19 Me. 335, it is held: "When money is once paid over to winner it cannot be recovered from stakeholder or winner; but when the money has not been paid over by the stakeholder, although it has been lost by the happening of the event, upon notice and demand, the stakeholder is liable to the loser for the amount by him deposited." This opinion sustains the opinion of Vischer v. Yates, delivered by the New York Supreme Court, and condemns the opinion of Senator Sanford, and says: "It best comports with public policy to arrest the illegal proceeding before it is consummated, and, in our judgment, the opinion of the Supreme Court is better sustained upon principle and authority than that of the Court of Errors." In a South Carolina case-Bledsoe v. Thompson, 57 Am. Dec. 777-the same doctrine is enunciated. In Tennessee it was held; that if the stakeholder paid over the money without notice and demand by the loser, he would not be responsible, but otherwise if the notice was given. In McAllister v. Hoffman, a Pennsylvania case (16 Am. Dec. 556), a case of betting on an election, it was held that money paid over to the winner, after notice, is recoverable, and the case of Vischer v. Yates is cited and approved. In the case of Shackleford v. Ward, 3 Ala. 37, it was said: "Notice to stakeholder to hold money arrests it, and he may not afterward pay over the money to either, whatever the determination of the event upon which depends the wager. In Jeffrey v. Ficklin, 3 Ark. 227, it is said: "The rule is that if the contract be executed, and both parties in pari delicto, neither of them can recover from the other the moneys so paid; but, if the contract continues, and the party is desirous of rescinding it, he may do so, and recover back the deposit. And this distinction is made: that where the action is an affirmance of an illegal contract for the performance of an engagement malum in se, it can in no case be maintained; but where the action is in disaffirmance of such a contract, and, instead of endeavoring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which is derived from an unlawful act, then it is consonant with the spirit and policy of the law that he should recover." In Alford v. Burke, 21 Ga. 46, the court says: "It may be considered now as well-established law that a party to an illegal or immoral or criminal contract may recover back from a stakeholder a deposit in his hands." The case of Vischer v. Yates is approvingly cited. In Reynolds v. McKinney, 4 Kans. 94, it is said: "Betting on elections is utterly prohibited by the laws of this State. It follows that all money placed in the hands of stakeholders is to be regarded as placed or deposited in their hands without consideration, to be repaid on demand to the person who deposited the same, or attached by any person having a valid claim, and showing cause of attachment against the depositor." In Hardy v. Hunt, 11 Cal. 343, after citing and approving Vischer v. Yates, it is held: "There can be no doubt that the wager was illegal and void as against public policy; the direct effect of such wagers being to affect the purity of elections. This has been often-indeed, we believe, universally-held whenever the question has arisen. If this suit had been to recover a wager of this sort the action could not be maintained. But this is not the question. The party depositing the money for this illegal purpose may retract the illegal act. The money is not forfeited for the benefit of the stakeholder." It would seem this


opinion was afterward qualified by the Supreme Court
of California. There are many other cases on this
same subject, but we have quoted sufficient to show
the general trend of the American decisions.

We hold that the wager made between appellee Craw-
ford and appellant Peck was illegal, and ab initio null
and void, and the stakeholder occupies the same posi-
tion toward them that he would have done had they
voluntarily left their money in his hands without any
stipulations; and, being a bailee, he is responsible to
each of the depositors for the amount of his deposit.
We are not assisting in executing an illegal contract;
we ignore it; we treat it as though it did not and could
not exist. Our decision will not recognize the exist-
ence of the contract, but says there was no contract.
We cannot permit a stakeholder to defend successfully
against a man who wishes to annul an illegal contract,
and is seeking to recover his deposit, and who would
defeat his claim by setting up as a defense the illegal
and void contract. He has no equity against the ap-
pellee, whose money he is holding. He cannot set
himself up to decide that a party cannot retire from a
contract which the courts would not enforce. Appel-
lee does not rely on the illegal contract to establish his
right to the money, but he says that appellant Lewy
has his money on deposit, and he wants it.
notice in time to stop it in the hands of the bailee. He
He gave
seeks to regain it, and he is entitled to it. It is the
policy of courts, as herein before indicated, to pursue
that course that will discountenance gambling on elec-
tions, and have a tendency to check it; and when it is
known that the loser can, at any time before the money
is paid over, reclaim it from the stakeholder, it will
have a discouraging effect on those who have the desire
to stake their money on the result of popular elections.
We are of the opinion that there was no error in the
judgment of the lower court, and it is affirmed.

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In a prosecution for assault with intent to rape, evidence of the general reputation of prosecutrix for unchastity is admissible.

In a prosecution for assault with intent to rape it is error to
fail to instruct as to the degree of force which must have
been intended by defendant in order to constitute the

In a prosecution for assault with intent to rape, where the evi-
dence makes an issue as to whether defendant intended to
use force, it is error not to submit to the jury the law of
aggravated assault and battery.
SIMKINS, J., dissenting.

Ed. Haltom, for appellant.

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one push the door, and I said, 'Who is there?' was late in the night; and I had a chair against the door. As I heard some one push the door, I said: evening.' I said, Is that you, Dick?' He said, 'Is Who's there? Is that you, Dick?' He said, 'Good Joe got any cartridges 44?' I said, 'No; what are you here for?' He said, Joe sent me here.' Joe is my husband. I said, What is the matter with Joe?' He did not give me any answer till I spoke the third time. get home to-night.' Joe had gone to San Antonio, He sank down on the bed, and said, 'He [Joe] can't and was on the road. I don't know all who went on the road with Joe, but Dick Shields started out with him. Yes, sir; defendant sank down on the bed, and when he said there was nothing the matter with my husband I was excited, and knew he was there for no good purpose. I struck at him with my right hand, and he caught it and held it tight, and it made my hand ache. He said: I have come to-night to see you. I have always loved you. I spoke to you every time, and you do not speak to me.' He said: 'I come to tell

time.' I told him to leave my house. He had taken you how much I love you, and come to have a good out a flask of some kind, and said: 'Josie, I want you to drink with me; forgive me.' I said I would not. He said, 'Josie, kiss me, then.' I told him I would not, and told him to get out. He said, 'I am a good mind to kill you, rather than have you tell your husband. When he told me how much he loved me, and wanted me to kiss him, I told him to go home to his own wife. He said: 'Josie, my wife has fooled me; that baby is not mine.' He said, Josie, kiss me.' I said I would not, and he said he would make me kiss him. He put his hand on my thigh and his right knee on the bed. I asked him what he meant. am going to sleep with you here.' I said, 'No,' and I He said, 'I raised up on the pillow, and he grabbed at me, and said, 'I will make you kiss me.' He grabbed a piece out of my dress here [indicating], and it hung down. I knocked his hand off, and he said: 'I will make you kiss me. You will not forgive me. You will not promise not to tell Joe.' He then rushed at me, and grabbed me with both hands. I pushed him, and he was drunk enough to stagger. I had only a gown, and picked up a wrapper off the little girl's bed, and run into the side room of the house. I heard his footsteps following me. I opened the room door and run out on the gallery. I heard him coming out there, and I thought it would not do to leave the house. I then ran back in the house at the same door he came in at. I run against the chair at the door that he moved when he pushed it open, and he heard me, and come in there. There were some few coals on the fireplace, and I threw some kindling on it to make a light. It was a little dark in the room, not enough light to see clearly. When he first come in the door he struck a match, and when the match burned he blew it out again. When he came back in the room again I said, 'Dick, do not turned it down and sat on it. I put your hands on me again or I shall hurt you.' He said, ' Leave, Dick.' He said he would when I promised not to tell Joe. Then my little girl raised up and looked at him. When he walked to the door my little girl raised up and looked at him. He said: 'Look at these children. If you tell Joe, I will kill him, and leave these children fatherless. I am under one bond

R. L. Henry, Assistant Attorney-General, for the picked up a chair and


HURT, P. J. Conviction for assault with intent to rape. The prosecutrix testified as follows: " is Josephine Taylor. My name I am married, and was married on and before October 7, 1889. I then had four children. The oldest was seven years old. I live now, and did in October, 1889, in Bexar county, in what is called the 'Posites Settlement.' The neighborhood is tolerably thickly settled. My nearest neighbor is a half or three-quarters of a mile. Myself and children were at home on the night of October 7, 1889. I know the defendant, Dick Shields. [Identifies him.] On the night of Oetober 7, 1889, I saw the defendant at my house. The first I saw of him he was standing in my front door. I was in my house in bed, and heard some

for killing a man, and if you tell him I will kill him
before your eyes.' He did not leave then, but left
when he got ready. He made no further assault on me.
When I run out on the gallery I did not cry out or
scream, because I was skeered. There are two doors
on the gallery. When I went into the side room I left
the house by a door there, and came back in at the
door the defendant entered. I was afraid, and did not
cry out.
The defendant had a pistol. I was afraid he
would shoot me. He had it in his hand. I did not see

it when I was running from him. I saw it when he first came in. I have known the defendant about ten years; maybe a little more. He lives in my neighborhood. The defendant there [pointing] is the man. The next morning I saw defendant again. He came to my house and asked for fire. I told him I had no fire for him. He went right in the house and lit his cigarette. When he got out he asked me if I had made up my mind not to tell Joe. I said I had not made up my mind to any thing. The next night I saw the defendant again at my house. He came there to the fence and hollered. I spoke to my husband, and said: "That's Dick. He said he was coming to kill you.' My husband had returned home about one o'clock in the day after Dick had left there in the morning. I told my husband all about it. When Dick was hollering out there at the fence, I said: 'Don't go out there. That is Dick. He said he was going to kill you.' He then told Dick to leave. This was about eight or nine o'clock at night. Defendant came up on the gallery, and kept on hollering: Joe! Joe! oh, Joe!' Then he came inside the fence, and up on the gallery. Joe said, What do you want?' He said, I want to apologize Joe went to the door, and opened it just a little bit. I went to my husband and saw Dick standing with one foot on the gallery. He had his right hand in his coat pocket. Dick said, Joe, I have come to tell you something.' I told Joe to tell him he would see him in the morning. He told him, and he went away. About a week after, I made the complaint upon which defendant was arrested. I did not make the complaint sooner, because me and my little girl were sick from being exposed from being run around in my night-clothes. This all occurred in Bexar county, Texas. When defendant was at the bed he had his hand on my thigh, and pressed me until it hurt me. It was not light enough for me to see whether his person was exposed or not. Question. What effort did he make, if any? Auswer. He caught me, and was going to kiss me. I got away from him, and he said he was going to make me kiss him, and was going to sleep with me."

Upon the trial the appellant proposed to prove by several witnesses that the prosecutrix's general reputation for chastity was bad. On objection by the State, the proposed proof was rejected by the court. This was error. If such was the character of the prosecutrix, the presumption is that appellant was aware of it. Horback v. State, 43 Tex. 242. What purpose could such proof subserve? Explain the conduct of appellant toward the presecutrix. Men take liberties with fallen women, without intending a rape, while they would not with chaste ladies.

The court omitted to define to the jury what degree of force must be intended by the accused to constitute an assault with intent to ravish. The omission was excepted to at the proper time. Was this required in this character of case? In rape it is. In assaults to rape, why not? Rape is the carnal knowledge of a woman without her consent, obtained by force. (Neither threats nor fraud are in this case.) What character of force? 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. In an assault to rape, to be guilty, the accused must make an assault upon the woman. The assault must be accompanied with the specific intention to rape; with the specific intention to have carnal knowledge of the woman; to have carnal knowledge of the woman without her consent; to have carnal knowledge of the woman by force; to have carnal knowledge of the woman without her consent, and by the use of such force as is sufficient to overcome such resistance as the woman should make. We cannot conceive it possible for a man to assault a woman with intent to ravish her without intending to do (to accomplish his purpose) all that which the law


requires to be done to constitute rape. This proposition, we think, is evident.

How stand the authorities? In Rex v. Lloyd, 7 Car. & P. 318, Patteson, J., in summing up, said: "In order to find the prisoner guilty of an assault with intent to commit rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part." See also Reg. v. Wright, 4 Fost. & F. 967. Henry, J., in State v. Preistly, says: "It must appear from the evidence that the defendant's intention was, if it became necessary, to force compliance with his desires at all events, and regardless of any resistance made by his victim." Citing in support of his position Com. v. Merrill, 14 Gray, 415; Reynolds v. People, 41 How. Pr. 179; Joice v. State, 53 Ga. 50; State v. Burgdorf, 53 Mo. 65; and we will add Mahoney v. People, 43 Mich. 39; State v. Hagerman, 47 Iowa, 151; Taylor v. State, 50 Ga. 79. In this State the same rule is announced. Brown v. State, 27 Tex. App. 330.

Appellant excepted to the charge, because it did not submit to the jury the law of aggravated assault and battery. While the conduct of appellant was reprehensible in the extreme, and the violent and indecent familiarity with the person of the prosecutrix against her will may or may not have been for the purpose of having carnal knowledge of her without her consent, and at all events, whether resisted or not, whether he intended to so accomplish his purpose, being au issue in the case (made so by the evidence), it was the duty of the court to submit this issue to the jury by proper instructions. See Pefferling v. State, 40 Tex. 486, in which the facts are much stronger against the accused than they are in this case.

For the reasons indicated the judgment is reversed, and the cause remanded.




A promise by one person for the benefit of another will sustain an action by that other; and this although the debt which the one promised to pay be not then in existence, and although at the time of the promise the beneficiary be not identified, and although the person claiming the benefit of the promise did not know of it when his claim against the promisee accrued.

The rule is applicable as well to a specialty as to a simple con


APPEAL from a judgment of the General Term of

the City Court affirming judgment on verdict. For services rendered to Ann Wilson in her illness, the plaintiff sues upon the subjoined covenant in an agreement between said Wilson and defendant, of which the consideration expressed is the conveyance by Wilson to defendant of a parcel of land in the city of New York: "Fourth. The said the First Presbyterian Church of Tremont, New York city, will pay and discharge any and all charges and expenses for medical attendance and advice, or other necessary attendance in case of illness, and the funeral charges and expenses of the said Ann Wilson, which shall include the purchase of a grave in Woodlawn Cemetery, and the erection of a monumental headstone. The session of the said church shall have full and entire charge of the said funeral."

Ernest Hall, for appellant.

Edgar J. Nathan, for respondent.

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