McCleavland v. State

Citations

• 24 Tex. Ct. App. 202
• 5 S.W. 664
• 1887 Tex. Crim. App. LEXIS 186

Syllabus

<p>1. Assault to Rape.—Charge op the Court upon a trial for assault to rape instructed the jury that “ the law provides that any person shall assault a woman with the intent to commit the offense of rape, he shall be punished,” etc.; the error complained of being the omission of the word “if” betweeen the words “that” and “any.” Held, that the omission is immaterial in view of another paragraph of the charge which properly defines the offense.</p> <p>2. Same.—The court charged the jury that “the use of any unlawful violence offered to another with intent to injure,” etc., the objection urged being to the use of the word “offered ” instead of the statutory words “upon the person,” in defining assault and battery. The defenses interposed were alibi, fabricated accusation, and that the acts charged against the accused, if proved, would not show an intent on his part to rape. Whether or not the acts of the defendant constituted an assault and battery was not an issue of the case, and, under such circumstances, it is held that the- substitution of the word “offered” for the words “ upon the person ” was not error to the prejudice of the accused.</p> <p>8. Same.—However erroneous-a charge of the court may be, if it redounds to the benefit of the accused he can not be heard to complain.</p> <p>4, Same—New Trial—Newly Discovered Evidence—Pact Case.— See the statement of the case for evidence sufficient to support a conviction for assault with intent to rape, but also for newly discovered evidence held to have demanded of the trial court the award of a new trial.</p>