252 S.W. 518 | Tex. Crim. App. | 1923
Appellant was convicted in the District Court of Galveston County of rape, and his punishment fixed at confinement in the penitentiary for life.
Appellant is a negro, prosecutrix a white girl. The indictment contained but one count which was for statutory rape, it being alleged that prosecutrix was under eighteen years of age and not the wife of appellant. There was no allegation of rape by force, threats or fraud. It not being alleged that the rape was by force, it was *567 error for the learned trial judge to submit to the jury in his charge that appellant might be adjudged guilty if the carnal knowledge was obtained by force.
The testimony is short. The prosecutrix testified that about the middle of July 1921 she went to the house occupied by appellant and situated in the rear of the house where she lived and that he had intercourse with her, and that he accomplish this by telling her that if she did not submit to him he would tell that he had seen her and one Louis Viana engaged in the same act. She further testified that following this act she had repeated acts of intercourse with appellant. It was further shown that a child was born to her in May 1922, and a physician testified that in his opinion this child was a negro. Prosecutrix further admitted that prior to the time she had any sexual knowledge of appellant, that said Louis Viana had copulated with her a number of times. The legislature makes the law. Under our present rape statute as it has been construed by this court in the cases of Norman v. State, 91 Tex.Crim. Rep.; Cloninger v. State,
Reversed and remanded.