The indictment charges rape upon Gladys Sapp, and embraces two counts, namely: one describing her as a woman; the other as a female under the age of eighteen years.
Both phases of the statute defining rape were submitted to the jury, namely: that defining rape as the carnal knowledge of a woman by force, threats or fraud, and that defining it as such knowledge of a female under the age of eighteen years. In other words, touching the first count, the court instructed upon carnal knowledge without consent, and concerning the second count, upon carnal knowledge with consent. The verdict is founded upon the first count.
To authorize a conviction under the first count, it was essential that the proof show that the appellant had intercourse with the prosecutrix by force, threats or fraud. If she consentedto the intercourse, there could be no conviction under the first count of the indictment. This we understand to reflect the repeatedly expressed opinion of this court. See Morgan v. State, 50 S.W. Rep., 718; Nicholas v. State, 23 Texas Crim. App., 317; Moore v. State, 20 Texas Crim. App., 275; Jenkins v. State, 34 Texas. Cr. Rep., 201. The last-named case was one in which the prosecutrix was under twelve years of age, and the indictment charged that rape was committed by force. The court said:
"While it would be permissible to show that prosecutrix was under the age of consent, yet in order to sustain the charge, a rape by force must be shown, and nothing less than this would suffice to sustain the allegation of the indictment."
Quoted in the original opinion is the paragraph of the charge concerning the second count in the indictment. Under the instruction and under the law, to authorize an acquittal of the phase of the offense charged in the second count, it is necessary for the jury to determine three things, namely; first, that the prosecutrix was over fifteen years; second, that she was of previous unchaste character; third, that she consented to the act of intercourse. See Penal Code, Art. 1063; Norman v. State,89 Tex. Crim. 330. Unless these concurred, there could be no acquittal under the second count.
The same is not true with reference to the first count. That count charging that the rape was by force, threats or fraud, would not support a conviction if the proof showed that the intercourse was by voluntary consent.
The appellant contends that the concluding words of the quoted charge mentioned renders the charge of the court as a whole contradictory. The words complained of are these: "You willacquit the defendant under the second count in the indictment andproceed to determine whether he is guilty under the first countin the indictment." *Page 64
Appellant contends that if the jury acquitted him under the second count, there could be no conviction under the first count. There could be no acquittal under the second count without a finding in favor of appellant on the issue of consent, and such finding would preclude a conviction under the first count. This being true, the appellant insists that the concluding paragraph mentioned conveys the idea that there might be a finding of fact justifying an acquittal under the second count and yet a conviction under the first count. This conclusion we find impossible to escape.
Touching the age of the prosecutrix, the evidence that she was more than fifteen years of age was meager, but not wholly wanting. It was deemed by the learned trial judge adequate to require solution by the jury, and upon that theory the phase of the charge relating to the second count of the indictment was framed. There is no direct evidence of previous unchaste character, but the description of the conduct of the prosecutrix as described in the written confession of the appellant is inconsistent with her previous chastity.
Upon the issue of consent, however, there can be no doubt that there was the issue formed. Appellant's written confession was introduced by the State as a part of its case. In it there is contained the declaration that the prosecutrix had not only consented to the intercourse with the appellant but invited and encouraged it. The State having introduced the confession containing this statement, its truth became a question for the jury's solution.
Against the paragraph of the court's charge submitting the second count, the appellant directed a timely objection which is embraced in the written objections to the court's charge in which that part of the paragraph of the charge submitting the second count to the jury is complained of upon the ground, among others, that it makes the charge contradictory within its terms.
A special charge was also requested in which the court was asked to tell the jury that if the prosecutrix was over fifteen years of age and consented to the act of intercourse and was of previous unchaste character, an acquittal should result. In the bill complaining of the refusal of this charge, appellant points out that in lieu of it, the court instructed as set out in the original opinion, adding the objectionable qualification, that is, the information that though they might "acquit under thesecond count, they will proceed to determine whether theappellant was guilty under the first count." The learned trial judge, in qualifying this bill, among other things, states "that the matters set out in the special charge related to the second count and could have had no application to the first." In this view, apparently, the fact that the consent which was an essential element of defense under the second count was a complete bar to conviction under the first count. In view of the exceptions made to the special charge requested, we do not regard the inaccuracy of the charge as *Page 65 due to any laches upon the part of the appellant nor did he waive his right to complain of it here, especially is this true in view of the character of the case. These conclusions we have reached upon reconsidering the record in the light of appellant's motion for rehearing.
It follows from what has been said that the motion for rehearing should be granted, the affirmance of this case heretofore ordered, set aside and the judgment of the trial court reversed and the cause remanded, and such is the order.
Reversed and remanded.