4 S.W.2d 37 | Tex. Crim. App. | 1928
The first count of the indictment charges appellant with the rape of Jewel Spain, "she being then and there so mentally diseased at the time of said carnal knowledge as to have no will to oppose said act of carnal knowledge, and the said D. M. White then and there knowing her to be so mentally diseased." The second count charges rape by force and threats, and the third count charges rape by force without her consent. The first two counts of the indictment were dismissed and the case was submitted on the third count.
The verdict of the jury found appellant guilty under the third count and assessed his punishment at fifteen years' confinement in the penitentiary.
Complaint is made of the introduction of testimony showing the mentally diseased condition of prosecutrix. This was admissible under the circumstances of this case on the issue of rape by force and without consent. Segrest v. State,
Prosecutrix was introduced as a witness by the state. If the case had been submitted under the first count of the indictment *268
and under the evidence as produced by the state, she would have been incompetent as a witness against appellant. Lee v. State, 43 Tex.Crim. Rep.; Thompson v. State,
Quoting: "Is she a competent witness? The state said so. When the prosecution introduced her as a witness it said to the jury in effect that the witness was then sane and was sane at the time when the evidence happened of which she was called upon to testify." Thompson v. State, 33 Tex.Crim. Rep..
With this presumption of sanity obtaining she testified to the immediate facts surrounding the alleged criminal act as follows:
The court charged the jury in part as follows:
"The force used must have been such as might reasonably be supposed sufficient to overcome all resistance within her power, taking into consideration the relative strength of the parties and other circumstances in the case."
Mr. Branch lays down the rule as to the force necessary in rape cases in the following language:
"Threats apart, every exertion in the power of the woman, under the circumstances, must be made to prevent the penetration of her person, or consent will be presumed." Branch's P. C., p. 998. Mooney v. State, 29 Tex.Crim. App. 257.
The definition of force given by the court in his charge and quoted above seems to have correctly stated the rule. Measured by this, is the testimony sufficient to sustain a conviction under the third count of the indictment? Her final testimony, after being twice examined by the state, answers the question: "I just laid down and he got on top of me. I didn't make any outcry or attempt to get out from under him. I could have got out from under him if I had wanted to."
Under her evidence and the plain terms of the law we have no alternative except to reverse and remand this case upon the insufficiency of the evidence to sustain the third count of the indictment, and it is accordingly so ordered.
Reversed and remanded.
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. *270