Opinion
No. 282.
Decided May 26, 1894
1. Rape — Charge — Penetration. — On a trial for rape, where the evidence, and particularly that of defendant himself, shows that the act of carnal intercourse was fully accomplished, an error in the charge of the court in defining penetration was harmless, and could not possibly have injured the defendant.
2. Same — Fraud — Stratagem — Prosecutrix Believing Defendant to be Her Husband — Charge. — On a trial for rape, under provisions of article 531 of the Penal Code, wherein a rape by "fraud" is declared to "consist, in the use of some stratagem by which the woman is induced to believe that the offender is her husband," and the court charged the jury, "If you believe defendant obtained carnal intercourse of said Mrs. W., she knowing at the time who he was and consenting to such carnal knowledge, or if you have a reasonable doubt as to this, you should give him the benefit of such doubt and acquit him," Held, not obnoxious to the objection that it required the jury, in order to acquit, to believe that defendant had carnal knowledge of the prosecutrix with her consent, and knowledge that he was not her husband.
APPEAL from the District Court of Gillespie. Tried below before Hon. W.M. ALLISON.
This appeal is from a conviction for rape, the punishment being assessed at a life term imprisonment in the penitentiary.
Mrs. W.E. Womack testified: "I know the defendant, Henry Ledbetter [points him out to the jury]; have known him something like three years. Saturday night, before this thing took place on Monday night, I sat up with old Grandpa Young, who was lying very low on his deathbed. Sunday night there was preaching and prayer meeting at his house. I was there until about midnight Sunday night, and returned home, only a short distance. Monday I did a big washing and scrubbing and made a dress for defendant's old mother, who lived at my house. My husband was teaching school. About 2 o'clock on Monday evening defendant came to my house to get, as he said, a bottle of medicine his mother had, for Mr. Young. Between sundown and dark on Monday evening my husband went over to again sit up with Mr. Young. Just after he left, and about dusk, the defendant came to our house again to get a pair of pants his mother had been mending for him. My father, Dr. Randolph, Willie Steagall, Mrs. Ledbetter (defendant's mother), and myself were there. He (defendant) sat and talked awhile, and said he was going over to Mr. Freeman's, the place he lived, and get a good night's sleep, as he expected to sit up with Mr. Young the next night. He then left We all retired early. I and Mrs. Ledbetter (defendant's mother) occupied one room. My bed and her's were very close together; the foot of her bed was within three feet of the head of mine, and turned the other way. My father slept in the adjoining room; so did Willie Steagall and Ed Dabney, two young men who were boarding with us, going to school. The front door of the house was shut, and a bed across it. I was expecting my husband at midnight, as he was to sit up the forepart of the night. So I left the back door of the storeroom, or dining room, unbuttoned, so he could get in without trouble. I retired, and being very tired I slept sound. I woke up about 10 o'clock, and when I woke somebody was on my person attempting to have sexual intercourse with me. I don't know whether he had made an entrance at that time or not. I thought it was my husband and spoke to him, and said, 'Mr. Womack.' He replied in a very low whisper, 'Yes.' I asked him, 'How is Grandpa Young?' He replied in a low whisper, 'About like he was.' I asked him what time it was. He said, 'I don't know.' I asked him what time it was when he left Grandpa Young's. He said, 'I don't know.' I then said, 'What in the world is the matter with you? I don't believe this is Mr. Womack.' He replied in a low whisper, in a tone as though as he was hurt at my doubt, and said, 'Why, yes it is.' At about this time he said something that I took to be 'Jesus Christ,' and something about dying for water. Then I became satisfied it was not Mr. Womack, and pushed him and said I would see who it was. He got out of the bed, and I followed immediately and started to get a match. He went towards the door. I saw that if I stopped to get a match he would get out and I could not tell who it was, so I followed him to the back door, and as soon as he got in the back door by the skylight I recognized him, and knew for the first time it was the defendant, Henry Ledbetter. I at once hallooed, and said to him, 'Henry Ledbetter, you vile wretch, you shall pay for this with your life.' There was a tin bucket with some water sitting near the door, on a table between a window and the door. I caught this up and threw the bucket at him with all my strength. I continued to scream and halloo. My father was awakened by my screaming; so was Mrs. Ledbetter. My father came in as soon as he could, and we lighted a lamp. I told him what had happened. He got the gun, but defendant had already run off when I first hallooed and threw the bucket at him. My father then woke up Willie Steagall and Ed Dabney, and sent them off to Mr. Young's after Mr. Womack. Mr. Womack came as soon as he could. I told him that Henry Ledbetter, the vile wretch, had been there and insulted me. He asked me if defendant put his hands on me. I told him yes. Then he asked me, 'Can you swear positively that it was him?' I told him yes. My husband got his gun and left at once to hunt him. When I first awoke, the defendant was lying on my person. He had sexual intercourse with me; his private organ penetrated my privates by actual entrance. This was on the 17th day of April, 1893, in Gillespie County, State of Texas. I am a married woman; have been married to my husband, J. Womack, for seven years. At the time defendant had sexual intercourse with me, as above stated, I believed he was my husband. He said he was, and I did not know otherwise until too late to prevent such intercourse."
Cross-examined: "I have known the defendant about three years. I stopped with his mother three or four days when they lived on Mr. Dabney's place, in 1891. Then Mr. Womack moved in a tent, and soon after old Mrs. Ledbetter (defendant's mother) came to live with me. The defendant did not live with us at any time. His mother lived with me two and one-half or nearly three years, almost all the time, and we supported her. The defendant was off working around, and came often to see his mother. The defendant did not, in the cowpen, pull my sleeve down, in the presence of his mother or otherwise. The defendant never touched me in his life in the garden. I was working out my garden at one time, which was just back of the house. He came to see his mother and she sent him out to finish the work for me. I gave him the hoe, and went into the house about my business. At one time in my house the defendant passed by me when I was sitting sewing on my machine, which was near the bed. In passing between me and the bed he touched me on the shoulder, as though he had done it accidentally. He appeared not to notice it. I supposed it was an accident, but told my husband. On another occasion, when I was making up bread in my kitchen, the defendant, passing through the kitchen out to the back door, had to pass between me and the stove. He again touched me on the shoulder enough to attract my attention. I did not like it, but he appeared to be perfectly unconscious that he had touched me, so I said nothing to him, but told my husband again, who told me he could not think that it was done purposely, or that he was even conscious of it. These two times were the only times he ever touched me in his life until the night of this occurrence. My husband's house consisted of three rooms, small rooms — two sleeping, and one cooking and dining room together. My room had three doors to it. One opened outside — that is the front door — and one into the room where Dr. Randolph and the two young men were sleeping. This door was closed. One opened into the dining room; this was open. The dining room door was closed but not fastened. That night was a cloudy night; that is, gulf clouds were passing over; sometimes it was darker and sometimes lighter. It had not rained any up to that time. I think it began to mist an hour or so after that. The wind that night was from the southeast. I know this, because I had a window on that side of the house that I had to close on account of the wind blowing into it. The dining room was on the north, so the wind did not blow it open. I did not know it was Henry Ledbetter having sexual connection with me. I thought it was my husband, as he (defendant) said it was. I recognized him positively in the back door as he went out. I never consented for the defendant to have sexual intercourse with me in my life. He pretended to be a Christian gentleman while at my house. I supported, washed, and ironed for his old mother, because she was old and feeble and poor. He had no place to carry her, and did not support her. I never thought of such a thing as his treating me in that way, after what I had done for his old mother."
Dr. Randolph, father of Mrs. Womack, Willie Steagall, and Ed Dabney each and all corroborated Mrs. Womack's testimony as to her outcries during the night, which aroused them; and she told them Henry Ledbetter had been in the house. She was weeping and wringing her hands, and calling Ledbetter a vile wretch. She sent Steagall and Dabney after her husband.
Mr. Sanders testified to a conversation with defendant and others some two years before, in which they were discussing what they would do if they should be accused of crime, and defendant said "he would play crazy."
J.T. Gilpin testified to seeing defendant the morning after the occurrence, at the postoffice at Willow City, with a pair of old pants tied around his neck, and acting as if he was crazy.
S.J. Womack testified to his going home and finding his wife in great distress; that she told him defendant had insulted her, but did not tell him the extent to which his insults had gone; that he got his gun and started on the hunt for defendant. Found defendant at Willow City, and he was playing crazy, but got all right before they reached Fredericksburg, where witness took defendant to jail.
Henry Ledbetter, the defendant, testified: "I was at Mr. Womack's twice that day. About 2 o'clock in the evening I went after some medicine my mother had in the trunk, for my headache. I had no conversation then with Mrs. Womack. I went back about dark after some pants my mother mended for me. I sat and talked some time. My mother, Dr. Randolph, Will Steagall, myself, and Mrs. Womack were in the room. There was a light in the room. Mrs. Womack was nursing her baby, sitting nearly in front of us all. She then said Mr. Womack was sitting up with Grandpa Young, and asked me to stay all night. I told her no; I would go to Mr. Freeman's and get a good night's sleep, as I had been sitting up. She then opened her bosom so I could see it, and pointed over her shoulder to the bed, smiling, and asked me to stay all night. I went out and stopped under a postoak. It was dark, and drizzling rain. I remained there until I thought they were all asleep. I then went up to the back window and tapped on the window pane. Then Mrs. Womack tapped on the bed to let me know she was awake. I went in and took her by the foot and shook it. I pulled down the cover, and caught her by the knee and shook her. She tapped on the bed again to let me know she was awake. I pulled down the cover a little lower, about half way down her legs, and she drew up her legs. I got in the bed on top of her and had sexual intercourse with her. After having sexual intercourse with her we lay there and talked some fifteen minutes. She knew who I was, and consented to me having carnal knowledge of her there. I had done the same before. She asked me how Grandpa Young was. I told her I did not know. She asked me what time it was. I said, 'I don't know.' I told her I was dying for some water, and started to get up to get some. She said she would go too. I got out over the foot of the bed, and stopped and steadied her as she got out. I then went on through the dining room to the back door; she came after me. When I got to the stove I stumbled over some wood, and she just behind me stumbled over the same. I said, 'God Almighty,' or something to that effect. She said, 'What was that?' and I said, 'Stovewood.' I got me a drink of water and was standing on the ground outside. She had drank, and was standing on the step with her hand on my shoulder, and all at once she began to scream and grabbed the water bucket and threw it at me. I went on off. I thought I would go down to Freeman's and go to bed. My head was aching very badly. From that time I did not remember anything else. I remember stepping off a high bank twice, and I seemed to come to myself long enough to know I was in the creek. I did not know anything else until I was in the jail at Fredericksburg; then it was a week or two before I got all right. I am subject to bad spells of sick headache, and during the time I don't know anything. It feels like my head will burst. At the time that Mrs. Womack staid with us, while me and ma was living on the Dabney place, one evening in the cowpen, in ma's presence, I pulled down Mrs. Womack's sleeve for her; and after that one evening we milked, and. Mrs. Womack said, 'Let's leave the calves to suck until after supper;' then I could turn them out. I told her all right, if she would come with me. She said, 'All right.' And at the cowpen, when we had turned them out, I said to her, 'Do you know I like to have bit your arm when I pulled your sleeve down?' She told me I ought not to do that way. That night, the 17th of April, 1893, was not the first time I had carnal knowledge of Mrs. M.E. Womack. I had often had sexual intercourse with her before that night. I had it with her that night by her consent, and she knew who I was at the time."
Cross-examined: "My head was hurting me, was the reason I told her I was dying for water. I knew what I was doing at the time I crawled in bed and had sexual intercourse with Mrs. Womack, the night of April 17, 1893; also when I left there. I was in bed with her twenty-five minutes, and we talked about Grandpa Young; also about the time of night. I had had intercourse with her in this same house. I had sexual intercourse with her whenever there was an opportunity. I had heard no noise of any kind about the place that night, except ma coughed one time when I first got in the house, but she often coughed in her sleep. I heard no noise after I stumbled over the wood. In my voluntary statement at examining trial, nor before the grand jury, I did not tell all I have said here. They did not give me time before the grand jury."
No briefs with the record.
Conviction for rape upon Mrs. Womack, a married woman. The indictment alleged that the rape was effected by force, threats, and fraud. The State relied upon fraud alone, namely, that appellant used stratagem, by which he induced Mrs. Womack to believe that he was her husband. Penal Code, art. 531. If Mrs. Womack is worthy of credence, this fact was most clearly established. There is nothing in this record, save the testimony of appellant, who was a witness, impeaching her testimony.
The court erred in defining "penetration." This may be conceded. There was no objection to this error, nor instructions requested concerning the same. Was it calculated to injure the appellant? Most evidently it was not, for Mrs. Womack not only swears positively to this effect, but appellant is equally as positive that he had carnal knowledge of her to the fullest extent.
The charge of the court does not require the jury to believe that appellant had carnal knowledge of the prosecutrix with her consent, and knowledge that he was not her husband, in order to acquit. Upon this subject the charge, based upon defendant's evidence alone, is: "If you believe defendant obtained carnal knowledge of said Mrs. Womack, she knowing at the time who he was, and consenting to such carnal knowledge, or if you have a reasonable doubt as to this, you should give him the benefit of such doubt, and acquit him, and say, by your verdict, 'Not guilty.' " By this charge the jury were instructed to acquit if they believed from the evidence that Mrs. Womack consented, knowing that it was appellant; to acquit if there was a reasonable doubt as to these facts.
The evidence amply supports the verdict in every particular. There is a direct conflict in the testimony of the prosecutrix and that of defendant. The jury settled the conflict against appellant, and we think correctly, when we look to other circumstances, which were very suspicious indeed.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.