Gibson v. State

Citations

• 17 Tex. Ct. App. 574
• 1885 Tex. Crim. App. LEXIS 30

Syllabus

<p>1. Assault to Rape — Term Defined.—Indictment in this case, charging an assault to commit rape, describes the assaulted party merely as a “ female,” and alleges that the assault was made without her consent and against her will. ■ It was objected to because it failed to charge that the assaulted party was either a “ woman ” or a “ female under the age of ten years.” In substance, the accused insisted that the indictment, to have been sufficient, should have described the assaulted party as a “woman,” or, in contradistinction thereto, that she was “ a female under the age of ten years.” Held that, though the indictment is wholly insufficient to charge an assault to rape a female under the age of ten years, yet, when used with reference to a human being, the word “ female ” is synonymous and interchangeable with, equivalent to, and means “ a woman; ” wherefore the objection was not well taken.</p> <p>2. Same.—An indictment for assault with intent to rape, after laying time and place, charged thatthe accused, “ with force, threats and fraud, in and upon one Mary Johnson, alias Mary Gibson, a female then and there being, unlawfully and feloniously an assault did make with the unlawful and felonious intent, then and there of him, the said John Gibson, -without the consent and against the will of her, the said Mary Johnson, alias Mary Gibson, to carnally know and to ravish,” etc. Held, that the indictment is good. The words “ without the consent and against the will of,” are surplusage, and the remaining allegations sufficiently charge the offense. See the opinion on the question.</p> <p>3. Same.— The word “ ravish,” which is indispensable in an indictment for rape or assault with intent to rape, means all that is necessary to charge the offense, and imports not only violence on the part of the man, but resistance and want of consent on the part of the woman, and if that word is used in an indictment for rape or assault to rape, it is but repetition and surplusage to a