Muniz v. State

102 S.W.2d 427 | Tex. Crim. App. | 1937

KRUEGER, Judge.

— Appellant was convicted of the offense of rape, and his punishment was assessed at confinement in the state penitentiary for a term of five years.

The testimony adduced by the State shows that in the month of November, 1935, appellant had one act of sexual intercourse with Elvira Sanchez; that this was with her consent; that thereafter in the month of July, 1936, he had several acts of sexual intercourse with her with her consent; that she was then under the age of fifteen years and not the wife of the appellant. At the trial the appellant testified in his own behalf admitting the various acts of intercourse with the alleged female as testified to by her.

Appellant urged a number of objections to the court’s charge which he has brought forward for review by separate bills of exception. His first objection is addressed to paragraph four of the court’s charge which reads as follows:

“The jury is further instructed that in consent cases the defendant may show, if he can, that the alleged injured female was not of previous chaste character as a defense. But the defendant cannot rely on his own previous acts of intercourse, if any, with said female as a defense of the charge in the indictment, if such previous acts, if any, occurred within- one year prior to the date of the filing of the indictment.”

The objection urged to this charge was that the same is a contradiction of the law applicable to the case. If the testimony had raised an issue as to whether or not the alleged female was over fifteen years of age at the time of the alleged acts of intercourse, then the charge would have been an erroneous statement of the law. But the uncontradicted testimony shows that the alleged injured female was under the age of fifteen years at the time of the various acts of intercourse. Unchastity of a female is a defense to the offense of statutory rape where the female is over the age of fifteen, but not where she is under said age. See art. 1183, P. C., 1925. Hence under the facts of this case the charge could not have prejudiced the appellant’s legal rights.

All other matters complained of have been examined by us and found to be without merit.

The judgment of the trial court is affirmed.

Affirmefi.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.