Serio v. State

Citations

• 22 Tex. Ct. App. 633
• 3 S.W. 784
• 1887 Tex. Crim. App. LEXIS 3

Syllabus

<p>I. Rape—Charge op the Court.—The indictment in this ease contained two counts, the first of which charged the rape of a child under- the age of ten years, and the second the rape of a woman by force, threats and fraud. Held that, the State having entered a nolle prosequi as to the first count, it was no longer an issue in the case, and, therefore, the trial court, by charging the law of such a rape, committed a fatal error.</p> <p>2. Same.—The “case” to which the statute requires the charge of the court to apply means the ease as made by the evidence. If, then, the evidence shows the rape to have been committed by one or two of the several means, viz: force, threats or fraud, but not by all three of those means, it is error to charge the jury upon all three of the said means. In other words, though the indictment charged the three means, the charge should be confined to the means only that was proved by the evidence. See the opinion for instructions of the court held erroneous in the particulars indicated. Rote also that the charge upon the subject of penetration, while correct in the abstract, is misleading, and, therefore, incorrect in its application to the case.</p>