On Motion for Rebearing.
MORROW, P. XIt is again insisted that the indictment was bad, in that it failed to state that the prosecutrix was of previous chaste character. The statute is found in the Acts of the. Thirty-Fifth Legislature, Fourth-Called Session, c. 50. The caption reads thus:
“An act to amend article 1063, title 15, chapter 8, of the Revised Penal Code of the State of Texas 1911, defining rape and declaring an emergency.”
As applied to the phase of rape upon which this prosecution depends, it is defined as: !
“Carnal knowledge of a female under the age of eighteen years, other than the wife of the person, with or without her consent, and with or without the use of force, threats or fraud.”
The section concludes with these words:
“Provided, that if the woman is fifteen years of age or over, the defendant may show in consent cases, she was not of previous chaste character as a defense.”
We have heretofore construed this statute as evidencing the intent of the Legislature to advance the age of consent to carnal knowledge to 18 years and to declare that the one accused of the offense might justify his act of carnal knowledge with the consent of the prosecutrix over 15 years of age by showing that she was of previous unchaste character. Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 992.
We have also expressed the opinion that the proviso mentioned was not descriptive of the offense, so as to require that the indictment should contain an averment of the previous chastity of the female. Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163. In reaffirming this view in the instant case, we are- constrained to think we' were not in error.
[4] The necessity for negativing exceptions is a subject upon which there have been many judicial expressions. From the text in Cyc. vol. 22, p. 344, the purport of them is thus stated:
“It is necessary to negative an exception or proviso contained in a statute defining an offense where it forms a portion of the description of the offense, so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted. Where, however, the exception or proviso is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation, being a matter of defense. As the rule is frequently stated, an exception in the enacting clause must be pleaded; but an exception in a subsequent clause or statute is matter of defense to be shown by the accused.”
A review of the various decisions of this court upon the subject we deem unnecessary; *479in fact, the number of them precludes it. They are listed in Branch’s Ann. Texas Penal Code, § 510. The general rule is thus stated by Mr. Bishop in his New Crim. Proe. vol. 2, p. 491, § 631:
“The doctrine is that the indictment on a statute, like any other, must show a prima facie case, and it need not do more. So that, if the statute has exceptions, provisos, and the like, those which are affirmative elements in the ■ offense must be negatived in averment, while those in the nature of defense may be disregarded. Such is the principle; in its application, much depends on the location of the several clauses or provisions in the statute.”
[5] Applying this rule in the light of our own decisions, as we understand it, the matter of chastity is not an affirmative element of the offense, but the unchastity is a fact available to the accused as a defense. Among the Texas cases illustrating this view, we refer to Mosely v. State, 18 Tex. App. 311, which refers to the provisos in the Sunday law. See Acts of the Eighteenth Legislature, p. 66; Newman v. State, 58 Tex. Cr. R. 226, 124 S. W. 956, referring to the medical practice act; Walker v. State, 68 Tex. Cr. It. 315. 151 S. W. 318, referring to the gift of intoxicating liquor during an election; Slack v. State, 61 Tex. Cr. R. 373, 136 S. W. 1073, Ann. Cas. 1913B, 112, referring to the sale of intoxicating liquors; Lewis v. State, 7 Tex. App. 567, referring to the unlawful possession of arms.
The motion for rehearing is overruled.