Davis v. State
Texas Supreme Court
Appeal from DeWitt. • Tried below before Hon. D. D. Claiborne. Burrill Davis was charged by indictment that he “ unlaw- “ fully, wickedly, feloniously and of his malice aforethought “ in and upon Mary Schwab, then and there, a female under the “ age of ten years, did make an assault, and he, the. said Burrill “ Davis, did by force then and there her, the said Mary Schwab, “ rape, penetrate and carnally know, without the consent then “ and there of her, the said Mary Schwab.”
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Appeal from DeWitt. • Tried below before Hon. D. D. Claiborne. Burrill Davis was charged by indictment that he “ unlaw- “ fully, wickedly, feloniously and of his malice aforethought “ in and upon Mary Schwab, then and there, a female under the “ age of ten years, did make an assault, and he, the. said Burrill “ Davis, did by force then and there her, the said Mary Schwab, “ rape, penetrate and carnally know, without the consent then “ and there of her, the said Mary Schwab.” On the trial the injured party, Mary E. Schwab, being examined by the court, was pronounced incompetent to testify on…
1Opinion of the CourtMoore, J.
The objections urged against the indictment are not well taken. It is not drawn with grammatical accuracy, or in strict conformity with common law precedents. The only material defect in it', however, in these particulars, is in the improper substitution of the noun “rape” for the verb “ravish.” It is unquestionably well settled that an indictment for this offense under the common law must contain the word “rav- “ ish.” To charge merely that the defendant “ did carnally “ know,” etc., is not sufficient to support the indictment. The reason given for this is that, by the charge “ did ravish,”…
2Cited by28 opinions
- Vasquez v. StateCourt of Criminal Appeals of Texas · 1942
- State v. HorneOregon Supreme Court · 1891
- Mitchell v. PeopleSupreme Court of Colorado · 1898
- State v. JonesMontana Supreme Court · 1905
- Simmons v. StateMississippi Supreme Court · 1915
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