dissenting.
The majority of the court remain convinced that the appeal was properly disposed of on original submission.
I cannot agree to the affirmance of this conviction under the admissions of the prosecutrix and her testimony as to how this alleged act of rape by force was perpetrated.
This is not a conviction for rape by threats. It is a conviction for rape by force.
The female in a case of rape is not required to resist her attacker to the point of destroying herself, but she must put forth some resistance against such force used by the appellant “as might reasonably be supposed sufficient to overcome (her) resistance, viewed in the light of the facts and circumstances and the relative strength of the parties.” Bundren v. State, 162 Texas Cr. Rep. 45, 211 S.W. 2d 197.
Under the testimony of the prosecutrix concerning this rape *318by force, the act of sexual intercourse took place in the front seat of an automobile. At the direction of appellant, she removed her pants and lay down on the seat of the automobile and continued to so lie until the act of intercourse was complete.
There is an entire absence of any evidence of resistance. No effort was made to scratch, strike, scream, or bite the appellant, or to do any other act at her command to resist the assault. Nor is there any evidence showing that the prosecutrix was physically unable to put forth some resistance.
A conviction for rape by force cannot be sustained by proof of rape by threats.
I cannot bring myself to believe that the testimony, here, evidences any resistance, let alone resistance such as the law requires.
If prosecutrix yielded because of fear or of threats made by the appellant, as she suggests, then the issue was that of rape by threats and not rape by force, and the prosecution should have been for the offense of rape by threats.
I cannot bring myself to conclude that the facts, here, authorize this conviction.
I am reminded of what this court said in Green v. State, 97 Texas Cr. Rep. 52, 260 S.W. 195 (at p. 196), a rape case wherein it was held that the facts did not show rape:
“When we read this most remarkable account of how, and the position in which, this alleged forcible act of intercourse took place we recall the words of Horatio, commenting on an incident he did not understand, ‘But this is wondrous strange,’ and Hamlet’s reply, ‘There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.’ One test for determining the truth, or otherwise, of evidence is: Does it comport with human experience generally regarding the matter under investigation? By this rule surely prosecutrix’s story is, to say the least of it, out of line.”
I would reverse the instant conviction for the reason stated herein.
I dissent.