Appellant was convicted of rape upon a child under the age of 12 years.
1. A special charge was requested, and properly refused, to the effect, that while a conviction for rape can be had on the uncorroborated testimony of the prosecutrix, yet where corroborative "testimony can be procured its nonproduction should tell seriously against the State." *Page 419
Pretermitting a discussion of the form of this requested charge, we find no error in its refusal, because the evidence of corroboration is strong, cogent, and upon every material issue. A failure to corroborate the testimony of the injured girl was not an issue in the case.
2. The court omitted to charge the jury in accordance with the provisions of article 532 of the Penal Code, that "penetration only is necessary to be proved upon a trial of rape." Exceptions were reserved to such omission. The jury were instructed, that in order to convict, they must believe the defendant "did, by assault, ravish and carnally know" the prosecutrix. The charge, as given, was certainly favorable to the accused. Under such an instruction any jury would understand that "carnal knowledge" carries with it the idea of sexual intercourse, and this, as understood in common parlance, means a completed act of coition. It is difficult to understand how "carnal knowledge" of a woman by a man could be had without penetration. In Burke's case this court said, "the words 'carnal knowledge' have a meaning as well understood in common acceptation as any other ordinary expression, and are covertible or interchangeable with the words 'sexual intercourse,' as used in our language." Burk. v. The State, 8 Texas Cr. App., 336.
In McMath's case, the Supreme Court of Greorgia said: "When a man is charged with the offense of rape, which is defined by law to be the 'carnal knowledge of a female forcibly and against her will, the charge of able carnal knowledge of a female' is sufficiently definite and distinct to enable the jury to understand the nature of the offense, without specifying the particular manner in which that carnal knowledge was had." 55 Ga. 303.
It is not the rule now, that the State must prove "sexual intercourse," or a complete act of "carnal knowledge" of the woman, as a basis of conviction. "Penetration only is necessary to be proved upon a trial of rape" in this State.
The word "penetration" is a limitation upon and qualification of the meaning of the term "carnal knowledge," as used in article 528 of the Penal Code, defining the offense of rape. In limiting the "carnal knowledge," mentioned in the definition of rape, to "penetration only," the Legislature evidently intended to eliminate the question of "emission" in such cases. The statute was therefore intended to be beneficial to the prosecution, and it was enacted for that purpose.
How the provisions of article 532 can redound to the benefit of the accused would be difficult to conceive, and we are of opinion that a failure to give it in charge would be prejudicial to the State.
The evidence is sufficient. The judgment is affirmed.
Affirmed.
Judges all present and concurring. *Page 420