Appellant insists in his motion that in as much as the evidence in this case clearly shows that the rape in question was accomplished by the use of threats as well as force, it was fundamental error for the court in his charge to omit to submit to the jury the proposition of guilt predicated upon rape by threats; in other words, that even though it be clearly proven that he was guilty of rape by force, if in connection with such force he also threatened the prosecutrix, he had the right upon the trial to have the law of rape by threats given to the jury, and that to fail so to do was a trespass upon his legal rights. We are unable to assent to such a proposition. It seems to us that the action of the court was *Page 625 clearly favorable to appellant. Much emphasis was laid in the testimony on the trial upon the threats used by appellant. To omit to give the law of threats and to confine the jury's consideration only to the question of whether the rape was by force, could but increase the burden upon the State and in nowise injure appellant.
We have again considered the facts but are of opinion that they overwhelmingly sustain the verdict.
The motion for rehearing will be overruled.
Overruled.