Conviction is for rape upon a female under 18 years of age; penalty 5 years in penitentiary.
Irene Brown, the prosecutrix, is a negro girl who was attending school in her neighborhood. Appellant, a colored youth about 19 years of age, lived in the same community, and was acquainted with prosecutrix, though the evidence shows he had never been out with her to any parties or entertainments. No toilet had been provided for the convenience of the scliool children, but they were accustomed to retire to the woods back of the schoolhouse when necessary to attend calls of nature. Prosecutrix claims that on the 8th day of November, 1920, during the noon recess, while out in the woods to relieve herself, she met appellant, and the act of intercourse took place upon which this prosecution is based. Appellant was not going to school and this meeting, she claims, was not by previous appointment, but accidental, and was the only act of intercourse between them. She developed pregnancy, and attributes her condition to appellant. ' Accused vigorously denied his presence at the time and place fixed by the girl, and attributes her condition to her stepfather, and supported the theory by a rather remarkable story told by his mother and one of her kinsmen of seeing the girl and her stepfather copulating in plain view of the road, although there appeared to be near a weed patch in which they might have hidden. The jury rejected this theory.
[1] Outside of the right of the jury to credit or discredit the testimony of any witness, two reasons are disclosed by the record why the jury may not have looked with favor on this story. Two witnesses were produced by the state who testified that appellant had offered them inducements to swear that they had seen prosecutrix and her stepfather copulating, which they declined to do, denying that they had ever witnessed such conduct. Accused also wanted one of these witnesses to swear that he himself had indulged in sexual relations with 'the girl, which also the witness respectfully declined to do. Another reason, the stepfather was shown to have been married three *478times to healthy women. He lived with the first wife four years, with the second three years, and had been living with his third wife, the mother of prosecutrix, five years. No children were born of any of these marriages. In the course of nature the jury were authorized to presume that such results might have followed, and may have concluded it was passing strange that no children had come to bless his legal unions, but had unfortunately overtaken his stepdaughter as a result of his alleged illicit relations with her.
Omitting formal parts, the indictment alleged that appellant had carnal knowledge of Irene Brown, a female under 18 years of age and not appellant’s wife. Motions to quash and in arrest of judgment were made, claiming that, if Irene Brown was over 15 years of age and under 18, the indictment should have alleged that she was of previous chaste character. Previous un-chastity is made a defense between 15 and 18, but it is not necessary for the state to allege previous chastity. That is presumed until the defense makes the issue.
[2] Complaint is made because the court refused to give the following special charge:
“Now, if the evidence shows or tends to show that Irene Brown was over the age of 15 years when this alleged carnal intercourse took place, or if you have in your minds a reasonable doubt as to whether she was over the age of 15 years and was of previous unchaste character, then you will find the defendant not guilty and so say by your verdict.”
We find this issue was presented to the jury in the third paragraph of the court’s charge, and a repetition thereof was unnecessary and would have been improper.
[3] The court was requested to charge the jury that, if prosecutrix was over 15 years of age, and of previous unchaste character, and never made any outcry concerning the commission of the offense, and no complaint for several months, and no disclosure concerning the same until her pregnancy made it obvious, the evidence would be insufficient to convict. We can see no necessity of giving such charge. If prosecutrix was of previous unchaste character, was over 15 years of age, and consented to an act of intercourse, it would be an absolute defense, regardless of whether she disclosed it immediately after the act was completed. The jury were, told it was a defense. The doctrine of prompt outcry and report does not apply to rape with consent in “under age” cases as it does to rape by force.
The court gave a charge on alibi which protected appellant in this defensive theory, and it was not required of the court to submit the same issue in other terms.
Binding no errors in the re'cord, the judgment of the trial court is affirmed.
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