ON APPELLANT’S MOTION FOR REHEARING
DAVIDSON, Judge.A majority of this court have concluded that we erred in affirming this case and that a reversal should be ordered for the following reasons:
By Bill of Exception No. 2, it is shown that before the introduction of any testimony and out of the presence and hearing of the jury appellant sought to have the trial court admonish state’s counsel that he was married and that the state’s witnesses as well as counsel should not mention or prove such fact upon the trial of the case.
*326The record reflects that, notwithstanding such request, proof was made that the officer went to appellant’s home on more than one occasion and there talked with a Mrs. Otis Thompson (appellant’s name being Otis Thompson).
The testimony of two other witnesses was susceptible of the same construction.
Appellant objected to such proof as showing that he was married.
The objection and the motion for a mistrial because of such proof were overruled.
In the recent case of Johnson v. State, 164 Texas Cr. Rep. 204, 298 S.W. 2d 132, we had occasion to review the admissibility of the evidence in a rape case showing that the accused was married, and we there discussed at length the prior cases upon that question. The conclusion there reached was that proof of such fact is ordinarily inadmissible and becomes admissible only when it tends to solve some issue in the case.
The conclusion is here reached that under the instant facts proof that appellant was married and lived with his wife was prejudicial error.
Another ground for reversal is found in the proof that appellant attempted to forcibly have sexual intercourse with another woman at a tourist court on another and separate occasion. Branch’s P.C., 2nd Ed., Vol. 4, p. 288, Sec. 1962.
With the above conclusions my brother MORRISON, Presiding Judge, concurs.
Accordingly, appellant’s motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause is remanded.
The writer is convinced that the evidence is insufficient to support the conviction. For that reason, which to me is paramount, I would reverse, and, as supporting that conclusion, I present the following independent views:
The indictment charged rape by force and threats. The case was submitted to the jury solely upon the law of threats. Any question of force was thereby eliminated from the case, as also removed from the jury’s consideration.
*327In connection with and as a part of his charge upon the law of threats, the trial court gave the following instruction to the jury:
“* * * in this case, you are instructed that to constitute rape by threats, the defendant must have ravished Idelia Torres, the alleged injured female, by having carnal knowledge of her against her will and without her consent by the use of threats, and the threats used, if any, must have been such as might have reasonably created in the mind of said Idelia Torres, a just fear of death and great bodily harm to her, in view of the relative condition of the parties as to health, strength, and other circumstances of the case * *
That charge followed the provisions of Art. 1185, P.C.
Upon the trial of the case the evidence showed more than one transaction involving a charge of rape by threats against the appellant.
The trial court restricted the jury’s consideration and appellant’s guilt to the first transaction which, according to the testimony of the prosecutrix, occurred at the Zabel residence about 11:30 o’clock the night of January 25, 1958.
The sufficiency of the evidence to sustain appellant’s conviction must be restricted to that transaction and tested under the definitions and limitations contained in the charge of the court, especially that portion above set out.
The prosecutrix, a nineteen-year-old Latin American mother of an illegitimate child two years of age, could neither speak nor understand English. On the night in question, the prose-cutrix was at the home of Mrs. Zabel in the capacity of babysitting for Mrs. Zabel’s two children, Donna, eight years of age, and Marsha, four years of age. She had been in Mrs. Zabel’s employ for about three or four weeks. She slept on a divan in the living room, which adjoined the bedroom of Mrs. Zabel and the two children.
About nine o’clock, p.m., prosecutrix and the two children retired for the night, the children in their bedroom and the prosecutrix, clothed only in her panties and brassiere, on the divan. About eleven o’clock a knock on the door of the house awakened the older child, Donna, who answered the knock and opened the door. Prosecutrix, too, awoke and asked the child not *328to open the door. Appellant entered the room. Prosecutrix remained in bed and pulled the cover over her. According to her testimony she did not know the appellant and had never seen him before. Appellant approached the divan where prosecutrix lay and, as he did so, removed from his coat a pistol, which he placed on a table close to the divan. He then removed the bed covering and began petting and loving the prosecutrix, during which time he removed her panties and brassiere. Seeing the child Donna in the room, appellant told her to leave, which she did.
Thereupon, appellant removed his coat and trousers and engaged in an act of sexual intercourse with prosecutrix.
After completion of the act, appellant and prosecutrix dressed and left the house and went to a waiting automobile, in which a male companion of appellant was seated.
After reaching the car, which was parked near the house, prosecutrix told appellant she wanted to go back to the house to get her coat. While appellant waited in the car she returned to the house and got her coat from the closet in the bedroom occupied by the children. When they began to cry she told them she would come back soon.
The prosecutrix' then voluntarily returned to the car and left with appellant and his companion, who later did the driving.
The foregoing facts were developed and shown by the direct testimony and admission of the prosecutrix.
On cross-examination of- the prosecutrix, she added nothing to her direct testimony in so far as proof of the threats antecedent to the act of intercourse was concerned.
The state introduced as a witness the. eight-year-old girl, Donna, who testified that on the night in question she answered the door and admitted appellant, • whom she knew because he had visited her mother on a prior occasion in their home; that at the direction of the prosecutrix she returned to her room to bed; that she heard appellant and prosecutrix talking but was unable to understand anything they were saying; that later she saw prosecutrix get her coat, comb her hair, and leave the house with appellant; that prosecutrix told her “she would be back in a little while;” and that she (Donna) then locked the door and returned to her room to bed.
*329The witness Donna was not asked whether nor did she testify that at the time prosecutrix got her coat and brushed her hair and left with appellant she (the prosecutrix) was nervous or excited or showed any evidence of having been raped. The witness’ failure to testify strongly indicates that such was not the case.
The foregoing are the facts upon which this conviction must; be tested. :
Appellant admitted that he went to the home of Mrs. Zabel to see her (Mrs. Zabel), that she was not at home, and that he engaged in an act of intercourse with the prosecutrix with her full consent and acquiescence.
It is apparent that appellant’s guilt depended upon the unsupported and uncorroborated testimony of the prosecutrix as to what happened while she and appellant were in the house.
Cognizance must be taken of the fact that the testimony of the "prosecutrix fails to reflect that appellant made any statement or spoke any words showing or which could be construed as a threat that “might reasonably create a just fear of death or great bodily harm * * *” to the prosecutrix. Art. 1185, P.C. .
The legislature has not specified how or through what medium the threats in a rape case must be made — that is, whether by some oral statement, written statement, or acts done. All the legislature appears to have done in defining the term “threats” is to specify the effect and not the method or manner employed in making such threats.
The criterion for such cases is that whatever is said or done must be such as to cause the prosecutrix to yield to the defendant and must be sufficient to create a fear of death or great bodily harm. Art. 1185, P.C.; Diggles v. State, 99 Texas Cr. Rep. 288, 269 S.W. 88.
As distinguished, then, from rape by force, rape by threats goes much further, because the acts or conduct of the defendant must involve death or serious bodily injury to the prosecutrix, with no actual violence applied.
In rape by force,, the force required is such “as might reasonably be supposed sufficient to overcome resistance.” Art. 1184, P.C.
*330On the other hand, rape by threats depends entirely upon the seriousness of the threats. Art. 1185, P.C.
Any threat; then, which is less than or does not amount to a threat to kill or to inflict serious bodily injury is not and can not be sufficient to constitute rape by threats. Fear, scare, or mental condition which does not amount to a fear of death or serious bodily injury is not a threat within the meaning of the law of rape by threats.
Such was the burden the state assumed to establish when it brought this prosecution. Did the state discharge that burden?
The most favorable construction that can be given to the testimony as showing a threat is that appellant had a pistol on his person which he removed from his clothing and placed on a nearby table, where it remained until the act of intercourse was complete.
The testimony of the prosecutrix does not reflect that preceding the act of intercourse appellant threatened to use the pistol or that he made any statement or demonstration or did any act showing that he was going to inflict death or serious bodily injury upon her if she did not yield to his demand for carnal knowledge of her.
I can not bring myself to agree that the testimony is sufficient to authorize appellant’s conviction.
In reaching that conclusion I can not lose sight of the fact that after the act of intercourse the prosecutrix dressed, combed her hair, and left with the man she said raped her by threatening death or serious bodily harm and that she went out to the waiting automobile with him, returned to the house for her coat while appellant waited in the car, and after obtaining her coat voluntarily returned to the car after having told the child Donna that she “would be back in a little while” and evidencing nothing to indicate to the child that she (prosecutrix) had been mistreated in any manner or that she had accompanied appellant from the house against her will.
The testimony strongly suggests that the sexual act relied upon for a conviction was with prosecutrix’ consent, especially in view of the fact that'the statement of facts nowhere shows the prosecutrix téstified directly and positively that the sexual act was without her consent.
*331When want of consent is alleged, as here, and the injured party testifies as a witness, want of consent must be expressly shown by the witness and circumstantial evidence will not be be sufficient to establish that fact. Art. 1410, Note 36, P.C.
Here, the evidence fails to show that the act of intercourse was without the consent of the prosecutrix. The state alleged want of consent in the indictment, and assumed the burden of making that proof.
This appellant may-have threatened to kill the prosecutrix or do her great bodily harm, thereby causing her to yield to the act of intercourse, but I can not find where she so testified.