# Love v. State > Court of Criminal Appeals of Texas · October 16, 1912 · 68 Tex. Crim. 228 URL: https://www.frixlaw.com/law-library/cases/3929496 ## Case - **Full name:** W.H. Love v. State. - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 16, 1912 - **Citations:** 68 Tex. Crim. 228; 150 S.W. 920; 1912 Tex. Crim. App. LEXIS 595 - **Precedential status:** Published - **Opinion:** Addendum by Prendergast - **Judges:** Prendergast - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3929496 ## Opinion text ON MOTION FOR REHEARING. (November 13, 1912.) PRENDERGAST, Judge. — There is but one question raised by the motion for rehearing which we deem it necessary to discuss, and that is, whether or not the evidence was sufficient to sustain the verdict, all the other questions having been already sufficiently discussed and correctly decided against appellant. There is no question whatever, and can be none, as shown by this record, that the appellant did commit an assault and battery upon the little girl, Gladys Young, at the time and place alleged in the indictment. The only question then, is, what was his intention at that time? Did he or not then and there have the intention to have sexual intercourse with this little girl, whether with or without her consent ? Appellant contends now, as he did when the case was originally submitted, that the Cromeans case, 59 Texas Crim. Rep., 611 , is exactly in point, and in effect is decisive of this case. We have time and again considered the Cromeans case and in our opinion it is not decisive of, and in the sense contended for by appellant, not applicable to the question in this case. What the court decided in that ease was in substance and in effect that the evidence itself demonstrated that while there was an assault and battery then committed upon that child, that it clearly was shown by the whole of it that there was no intention by the appellant to then and there have sexual intercourse with that child whether with or without her consent; but that, at most, the evidence established that the appellant then and there sought to get the child’s consent to, at some future time and different place, permit him to have sexual intercourse with her. That is not this ease. Let us briefly again give the substance of the testimony in this case. Appellant was the pastor of this little girl and her family and had been for about two and a half years continuously prior thereto. He had been a frequent visitor at her father’s house. On the morning of the assault just before noon he reached her father’s house again on a visit and instead of going to the house where the family and mother were, with his wife, or as she did, he saw this *236 little girl in the garden and went ont to where she was. ' No one else was present except the two. When he first went ont she was engaged in gathering vegetables and he assisted her. Some conversation occurred between them. Doubtless, the sight of the girl and being thus in close proximity to her, we think the evidence justified the jury to believe that his sexual passions became aroused. He asked the little girl to kiss him; she either innocently did this, or permitted him to kiss her, which further aroused his sexual passions. They were then where they could be seen by persons at the residence. In order to get where no one could see them he proceeded to go over to the portion of the garden where he could not be seen. Then he called the girl to him, got down on his knees, asked her to get on hers; that he then again kissed her without asking her, put his arm around her and drew her over to and up against him; then raised the girl’s dress and put his hands on her privates, and began to say sweet things to her. She tried to jerk away from him, but he held her hard and fast and so held her until she finally jerked loose from him and left him. What was his intention at this time when he committed these acts and this assault and battery upon this little girl, if it was not to have sexual intercourse with her and gratify his aroused sexual passions? He was soon after given an opportunity to tell what his intention was by members of his congregation who had heard of it and had been appointed to interview him on the subject. He first merely stated that he only kissed her, then when asked if that was all he did, said, “No, I put my hands under her clothes.” And then, did he say that he had only some innocent purpose, no intention to have sexual intercourse with her then and there? No, but when he was then pressed and given the opportunity to tell what his intention was, said: “I guess the old Devil was in me.” The old Devil was in him for what? To innocently caress and fondle this little girl, after it is so apparent that his sexual passions had been greatly aroused? What was the jury, under the circumstances, authorized to believe from all these facts and circumstances? We answer unquestionably, that they were authorized to believe, as they did, that his specific intent at that particular time was to have sexual intercourse with this girl. It is no answer to this to say that he did not have sexual intercourse with her, nor that he afterwards changed his mind when he saw the little girl would not consent. But what was it at the particular time when he committed the assault and placed his hands upon the private parts of the girl? The jury was composed of twelve fair, impartial, unprejudiced and unbiased jurors, • selected from all portions of the county, following different businesses and occupations, of different ages, from that of young or younger men to that of old or older men. They know human nature. They know what these acts and this conduct by the appellant meant and what he intended by it. The court told *237 them plainly and clearly that before they could find him guilty they must believe beyond a reasonable doubt from all the testimony that at the time he committed this assault upon this little girl he did so “with the specific mtent then and there to have carnal knowledge” of her; and unless they do so believe, they could not convict him of an assault with intent to rape. Again the court told them that if, by this assault upon this girl, they believed that he intended only to indulge in improper fondling- of her person and not to have carnal knowledge of her, then they could not convict him of an assault with intent to rape. Then again, he told them, in effect, that notwithstanding they may believe from the evidence that he was guilty of committing an assault upon this girl, yet, if they have a reasonable doubt as to whether it was with intent to have sexual intercourse with her or only an aggravated assault, then to give him the benefit of the doubt and not find him guilty of anything higher than an aggravated assault. Intent, always in cases of this character, must be proven, but like every other fact, can be proven by circumstantial as well as direct testimony. The appellant was given the opportunity, as stated above, when his churchmen waited upon him, to tell what his intent was. He did not then contend it was not to have sexual intercourse with her. Taking his testimony alone, as detailed by his two churchmen, we think his intent could be found by the jury and that it was then and there to have sexual intercourse with this girl. If this had not been his intention, why didn’t he say so when the opportunity was given him and he was called upon for an explanation by his own church members? And why did he right away flee and hide out, so that it took months of the most diligent search by the sheriff to find him? If that wasn’t his intention, then what was his intention? We answer that it is shown by the facts and circumstances of this case and is supported by the oath of twelve fair, impartial, disinterested, unbiased and unprejudiced jurors by their finding him guilty, that he had the specific intent at the time he committed the assault upon this girl, to have sexual intercourse with her. The district judge, who heard all the testimony, so held in refusing his motion for new trial. It certainly cannot be contended, with any show of reason, that in order for a jury to determine under such facts and circumstances that the appellant’s intention was then and there to have sexual intercourse with the little, girl that he must actually commit the offense of rape, nor that he must go through every preparation by placing the child and himself both in the very act of sexual intercourse, but not actually penetrating her, to show this was his intent. But, as we said in the case of Duckett v. State, recently decided, only so much preparation, and preparation only to such extent, considering the parties and their surroundings, as would convince a jury of such men as sat upon the jury in this case, beyond reasonable doubt, that his specific intention then and there *238 was to have sexual intercourse with the little girl. In our opinion the verdict of the jury was supported hy the evidence, .and we incline to the opinion that no jury of the right kind ¡of men would have found otherwise than as they did in this case. The motion for rehearing is overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3929496. Public record. Not legal advice.