The opinion
HAWKINS, Presiding Judge
(dissenting).
The present writer assumes responsibility for having agreed to the affirmance of the judgment in our opinion released on March 16, 1949. After further consideration and examination of our own authorities the conclusion has been reached that we were in error in holding the indictment good.
Our statute (Art. 1183, Vernon’s Ann. P. C.) defines the character of rape with which we are here dealing in the following language: Rape is “the carnal knowledge of a
female
under the age of eighteen years other than the wife of the per
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son with or without her consent, and with or without the use of force, threats or fraud.” Omitting formal parts, the present indictment charges that appellant “in and upon Linda King, then and there under the age of fifteen years, did make an assault, and the said Defendant did then and there ravish and have carnal knowledge of the said Linda King, the said Linda King not being then and there the wife of the said Defendant.” It will be observed that there is no averment that Linda King was a female, nor any reference to her by the use of a feminine personal pronoun.
There seems little excuse for such carelessness in drawing such an indictment, and the blame should be placed where it belongs. In White’s Annotated Texas Penal Code, and Forms of Indictments, published in 1897, the form for such an indictment specifically includes the averment that the assaulted party was a “female,” and every edition of Willson’s Criminal Forms, likewise includes such averment.
It may be well to recall some fundamental principles long recognized and announced by our court regarding the sufficiency of indictments, and then ascertain how they have been applied in prosecutions for rape.
The averments in an indictment should be direct, positive, and certain, not argumentative or inferential. Moore v. State, 7 Tex. App. 608; Hunt v. State, 9 Tex. App. 404; Kerry v. State, 17 Tex. App. 178. The facts constituting the offense must be averred directly, forcibly and with certainty, and not by way of argument or inference. Parker v. State, 9 Tex. App. 351; Thompson v. State, 16 Tex. App. 159. “But inferences and intendments cannot be indulged in testing the sufficiency of an indictment or information. The facts which constitute the offense must be directly and explicitly averred, and the rule is imperative, and not to be disregarded. Everything should be stated in an indictment or information which it is necessary to prove.” Brown v. State, 26 Tex. App. 540, 10 S. W. 112 .
“All that is essential- to constitute the offense must be explicitly charged and cannot be aided by intendment. The mere statement of a legal result or a conclusion of law will hot be sufficient. The facts constituting the crime must be set forth so that the conclusions of law may be arrived at from the facts stated.” Ford v. State, 108 Tex. Cr. R. 626 , 2 S. W. (2d) 265 ; Jones v. State, 118 Tex. Cr. R. 106 , 38 S. W. (2d) 587 .
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These fundamental principles were announced by our own court in construing indictments after the legislative department of our State Government undertook to prescribe forms of indictments which would be sufficient. See Acts of the Legislature in 1881, Chapter LVIL, Gammel’s Laws of Texas, Vol. 9, p. 60. While not saying so, perhaps, in exact words, our court very clearly held that it was a judicial function and not a legislative function to say when an indictment did or did not charge an offense, and that the legislative department could not infringe upon the judicial department in that particular under our constitution providing executive, legislative and judicial departments. These fundamental principles are as true, and should be as binding, today as when announced.
The writer of the opinion of affirmance very correctly said that the “indictment (in the present case) must be held defective unless there is language in it to indicate the fact that the victim is a female person. No language can be added by implication or interpolation for this purpose, and we must rely upon that which is found in the bill of indictment itself. No pronoun is used to indicate the sex, but it has the allegation that Linda King was under fifteen years of age and not the wife of .the defendant. It is our conclusion that the name of the victim, ‘Linda’, is the name of a female and not a male person.” It is with this conclusion that the present writer finds himself in disagreement. In the absence of a feminine pronoun in the indictment referring to Linda, who is to decide that it is a feminine name? If, perchance, some one of the judges knows a girl whose name is Linda and some other judge knows a man whose given name is Linda, which one controls in the absence of a direct averment in the indictment? Can this court tike judicial knowledge that all Lindas are girls and thus substitute judicial knowledge for the absence of an averment of fact? The danger of such a course was demonstrated by an incident which occurred in our own court not more than ten days ago. A conviction for vagrancy was before us against one “Jettie-----.” The judge who prepared the opinion assumed that “Jettie” was a woman and referred to her as “she” and “her.” Fortunately, our attention was called to the fact by the prosecuting officers that “Jettie” was a man in time to correct the opinion before it was published.
The case of Battle v. State, 4 Tex. App. 595, is cited as authority relative to “Linda” being the name of a female. In the indictment there, the alleged victim was alleged to be Theresa Gaudaloupe, and while there was no direct averment that said
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person was a female, in three separate places in the indictment the feminine pronoun is used: “against the will of
her,”
“attempt by force
her,”
and “with intent
her.”
The only reference to her name being that of a female is found in the next to the last paragraph in the opinion in which the court said:
“Using as does the indictment in this case, the personal pronoun ‘her’ as many as three times in connection with the name of the assaulted party, and the fact that her Christian name is ‘Theresa,’ which is a name generally born by a female, we think the indictment sufficiently describes the injured party as a female, or woman.” .
In Carter v. State, 78 Tex. Cr. R. 240 , 181 S. W. 473 , there was no direct averment that the assaulted party was a female, but she was referred to in the indictment by the feminine pronoun “her.” The Battle and Carter cases, supra, are the only cases we have found or to which our attention has been called as bearing directly upon the point at issue. The difference in those cases and the one under consideration is apparent. The writer has been conscientiously forced to the conclusion that no averment in the indictment supplies the statutory requirement of an allegation that the injured party was a female.
If the present writer properly construes the opinion of my Brother Graves on rehearing, it resolves itself into the expression of the opinion that all that would be necessary to charge a party with rape would be to allege that “A. B. did ravish C. D.” That seems to have been the view of the legislature in 1881, referred to in the beginning of this opinion, because Form No. 8 prescribed the proper indictment for rape would be “A. B., an adult male, did rape C. D., a female.” See Gammel’s Laws of Texas, Vol. 9, p. 61. It can well be understood why this suggested form was denounced by the court as bad because it undertook to charge a statutory crime without alleging a single material element of the offense of rape as defined in our statute, save that even that legislature thought the pleader ought to allege that the injured party was a “female” and the accused a “male” person. In his concurring opinion overruling the motion for rehearing my Brother Beauchamp disagrees with my Brother Graves, and upon that point at least this dissenting opinion reflects the views of a majority of the court.
The present writer is always reluctant to disagree with his brethren, but in the instant case he believes it sufficiently important to the jurisprudence of the state to record his views.
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The crime was dastardly and doubtless proper punishment would be meted out to the accused, but it ought to be done in a conviction secured under an indictment which properly charges the offense.
Having reached the conclusion that the indictment was fatally defective, it follows that in my opinion the motion for rehearing should be granted, the judgment of affirmance set aside, and the prosecution under the present indictment be dismissed. So believing, I respectfully register my dissent to the conclusion of my brethren.