McGee v. State

Citations

• 21 Tex. Ct. App. 670
• 2 S.W. 890
• 1886 Tex. Crim. App. LEXIS 209

Syllabus

<p>1. Assault to Rape—Practice—Evidence.—The mother of the alleged injured party was permitted, on a trial for assault with intent to rape, to testify, for the State, to the particulars of the complaint made to her by the alleged injured party on the morning after the night of the alleged assault. Meld, error. Such evidence is admissible only when the statements of the alleged injured party are cotemporaneous with and illustrative of the assault, and therefore are res gestee.</p> <p>2. Same—Charge of the Court.—Evidence tending to show that the accused made an indecent assault upon the person of the injured female, but with no intention of - penetrating her person with his male member, required a charge to the effect that there could be no rape without penetration, and no assault with intent to rape without an intent, at the time of the assault, to penetrate the person of the assaulted female. Refusing a special charge to such effect, the trial court erred.</p> <p>3. Same—Aggravated Assault and Battery.—The evidence alluded to demanded of the trial court a charge upon aggravated assault, and battery.</p>