recognizing “[j]ustice and reason demand” that defendant should be subject to separate convictions and harsher punishment if he “robs, kidnaps, rapes, and murders his victim” than if he “committed only one of the crimes”
How later courts described this case
- recognizing “[j]ustice and reason demand” that defendant should be subject to separate convictions and harsher punishment if he “robs, kidnaps, rapes, and murders his victim” than if he “committed only one of the crimes”
- holding that the carving doctrine is unsound because its application has been erratic and it is not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions
- noting that ''[t]he dictum in Day that the statute 'defines lesser included offense in terms of the facts of the case' has been misinterpreted to mean the evidence in the case. Under this misinterpretation, the offense of unlawfully carrying a weapon could be a lesser included offense of murder if the evidence showed that the alleged murderer was carrying a weapon. The correct construction of Day (and of the statute) is that the term 'facts’ refers to 'factual elements.’ By this construction, the lesser included offenses in a case can be determined from the four corners of the indictment, which alleges the 'facts required to establish the commission of the offense,’ as distinguished from mere matters of evidence.”
- abandoning “carving” doctrine under double jeopardy clause because “same criminal episode or transaction” test applicable as part of that doctrine would prohibit multiple convictions in that situation and thereby “encourage[] crime”
Written by the judges who cited it.
The opinion
DOUGLAS, Judge,
dissenting.
The majority grants the relief in the aggravated rape case because of the omission in the indictment of a culpable mental state. The culpable mental states are that one intentionally, knowingly, recklessly or negligently commit the act constituting a crime. It is inconceivable that one can, by threats to take a life, compel a woman to submit to intercourse by recklessness or negligence. It is conceivable that one can threaten to inflict serious bodily injury or death to compel a woman to submit to intercourse without knowing it?
The indictment reads that petitioner did “... unlawfully, by force and threats, and without the consent of Mrs. J_ L_, ravish and have sexual intercourse with Mrs. J_L_, a female not then and there the wife of the said Stephen McWilliams, and the said Stephen McWil-liams did compel submission by Mrs. J_L_to said ravishment and sexual intercourse by threatening to inflict death and serious bodily injury to the said Mrs. J_L_”
V.T.G.A., Penal Code, Section 21.02, sets forth the elements of rape:
“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
“(2) he compels her to submit or participate by any threat, communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm; ...”
V.T.C.A., Penal Code, Section 21.03, sets forth the aggravating circumstances of rape:
“(a) A person commits an offense if he commits rape as defined in Section 21.-02 of this code or rape of a child as defined in Section 21.09 of this code and he:
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.”
*822 In Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977), the defendant contended that the indictment failed to allege to whom the threat of death was communicated and was, thus, fundamentally defective. We held that a “logical deduction arising from a reasonable reading of the entire indictment is that the prosecutrix submitted to appellant’s act because he threatened her with the imminent infliction of death.” 547 S.W.2d at 615 .
In Clark v. State, 527 S.W.2d 292 (Tex.Cr.App.1975), we held that the indictment, read as a whole, was sufficient to apprise the defendant of the offense under the statute. See also Banks v. State, 530 S.W.2d 940 (Tex.Cr.App.1976).
Article 21.17, V.A.C.C.P., provides:
“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”
When the indictment in the present case is read as a whole, it is clear that McWil-liams is charged with aggravated rape. It is incomprehensible that someone can threaten to inflict death and serious bodily injury on another and by force and threats have sexual intercourse with the complainant and not know about it or intend to do it. We should look at the indictment, absent a motion to quash, only to see if it sufficiently charges an offense against the State.
The majority grants relief in the aggravated kidnapping conviction. The relief should not be granted in aggravated robbery convictions for the reasons set forth in the dissenting opinion in Orosco v. State, 590 S.W.2d 121 (Tex.Cr.App.1980).