Mayo v. State

Citations

• 7 Tex. Ct. App. 342

Syllabus

<p>1. Indictment. — Under the Code of this State, an indictment is good in substance if, eliminating surplusage, it so avers the constituents of the offence as to apprise the defendant of the charge against him, and to enable him to plead the judgment in bar of another prosecution for the same offence. That which it is not necessary to prove need not be alleged in an indictment.</p> <p>2. Same—Misnomer. —If a misnomer occurs in an allegation which is immaterial and may be rejected as surplusage, it does not vitiate the indictment.</p> <p>3. Rape. — Sexual intercourse with a female under the age of ten is rape in this State, no matter what the circumstances; and the question of consent, or whether the intercourse was obtained by force, threats, or fraud, is wholly immaterial.</p> <p>4. Case Stated. —-Indictment of one Eli Mayo for rape of a female under ten 3-ears of age alleged that he, the said Eli Mayo, did make an assault, etc., and that he, by force, threats, and fraud, “by him, the said Eli Ma3-,” used, etc., and without her consent, did ravish, etc. Defendant moved to quash for the reason, substantially, that the rape was not -charged against him. but against a different man, to wit, Eli Hay. But held, that the allegation excepted to is immaterial and surplusage, and the indictment, eliminating that allegation, remains sufficient to charge the defendant with rape of a female under ten years of age.</p> <p>5. Attempt to Commit Rape. — Under the Code of this State, the offence of an attempt to commit rape on a female under ten years of age may be perpetrated with her consent, and without force, threats, or fraud.</p> <p>6. Evidence. —In a trial for rape, the prosecutrix cannot be required to testify to illicit intercourse between herself and any one othpr than the defendant.</p> <p>7. Practice.—Art. 729 of the Revised Code of Criminal Procedure introduces a new rule of practice by providing that the judge, in ruling upon the admissibility of evidence, shall not