• On Motion for Rehearing.
LATT1MORE,- J.It is insisted that the proof and • allegation are at fatal variance, because the indictment alleges that the accused “did then and there ravish and have carnal knowledge of” the injured' female, she being under the age of 18 years, and that the proof supports the contention thatt the carnal knowledge was had by her consent, appellant’s position being that the use of the word “ravish” in the indictment makes it necessary to prove force.
The indictment follows form 497, Willson’s Criminal Forms (4th Ed.), and has been held good in many cases by this court. Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476; Anschicks v. State, 6 Tex. App. 524; Mayo v. State, 7 Tex. App. 347; Banton v. State, 53 Tex. Cr. R. 253, 109 S. W. 159; Alexander v. State, 58 Tex. Cr. R. 623, 127 S. W. 189; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769; Young v. State, 89 Tex. Cr. R. 230, 230 S. W. 414. In the Buchanan Case, supra, it seems correctly stated that an indictment such as the one before us charges two .methods of rape on a female under the age of consent.' It has always been the rule that an indictment which charges a rape to have been committed by force, threats, and fraud, is fully sustained by proof of any one of these three methods thus alleged. Cooper v. State, 22 Tex. App. 430, 3 S. W. 334. It is equally well settled that to charge rape on a .female under the age of consent, the indictment fully charges same when it only says “did have carnal knowledge of the said-.” The instant indictment charging “did ravish and have carnal knowledge,” etc., is therefore sustained by proof that the accused did have carnal knowledge of the girl.
We see no need for discussion of the well-understood proposition that the word “ravish” implies force and want of consent. The matter is not necessary to a proper decision of this case. It is as though we were urged to discuss the meaning or effect of an allegation of force, or one of threats, where the state relied solely on proof of fraud. In such case the methods not sustained by proof pass out. Branch’s Ann. P.' O. § 995.
Appellant insists that in later cases the doctrine above affirmed has been repudiated. He refers to Parks v. State, 92 Tex. Cr. R. 59, 241 Í3. W. 1017; Shroeder v. State, 92 Tex. Cr. R. 7, 241 S. W. 170; Cromeans v. State, 59 Tex. Cr. R. 611, 129 S. W. 1129; and Garrison v. State, 97 Tex. Cr. R. 498, 262 S. W. 762, as overruling the doctrine of the cases above cited by us. The Cromeans opinion was written before that in Vaughn v. State, supra, but we find nothing in the opinion in said Cromeans Case at all opposed to our view as here expressed. The learned special judge writing that opinion uses the following expression:
“Rape on a girl is with or without her consent, and with or without the use of force, and an indictment for such offense need not allege force (but if force is alleged it must be proved).”
This parenthetic statement alone can be rglied on by appellant in the case before us as supporting his contention. All must agree that where force alone is charged in any case, whether over or under age, same must be proved, but when force and threats and fraud are charged in alleging rape, or when force and having carnal knowledge are charged in alleging rape of a female under the age of consent, it would be idle to insist that the case can only be made out by proof of force. The Cromeans Case, with the utmost respect to the learned judge who wrote the opinion, would be more accurate in the expression" referred to if it should say in the parenthesis, “if force alone is alleged, it must be proved.” So of the Parks Case, supra, wherein the 'trial court submitted both of two counts, ope charging rape by force, threats, and fraud, and the other charging same by having carnal knowledge with consent. The jury convicted under the first count, and we held that the facts showing consent, the conviction under count 1 was not sustained. In the Shroeder Case, supra, assault to rape by force and without consent was alleged, and on the trial the case- was treated as one charging an assault on a woman and not on a child, and what is said in the opinion there must be construed having this fact in mind. There is nothing in the Garrison Case, supra, that in any way supports the contention of appellant.
No sort of attack was made on the indictment in the court below in this case. The indictment is not duplicitous. Gray v. State, 43 Tex. Cr. R. 300, 65 S. W. 375; Taylor v. State, 50 Tex. Cr. R. 362, 97 S. W. 94, 123 Am. St. Rep. 844; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; Fields v. State, 39 Tex. Cr. R. 488, 46 S. W. 814; Cooper v. State, 22 Tex. App. 429, 3 S. W. 334; Day v. State, 14 Tex. App. 30; Patterson v. State, 48 Tex. Cr. R. 322, 88 S. W. 226.
Appellant also insists- that the word “ravish,” because of its use, becomes descriptive of the offense, hence must be proved. *824Not so. Davis v. State, 42 Tex. 226; An-schicks v. State, 6 Tex. App. 524; Mayo v. State, 7 Tex. App. 347; Moore v. State; 20 Tex. App. 278; Whitehead v. State, 61 Tex. Cr. R. 558, 137 S. W. 356; Hightower v. State, 65 Tex. Cr. R. 323, 143 S. W. 1168; Vanderberg v. State, 66 Tex. Cr. R. 583, 148 S. W. 315.
The contention that if force is alleged in charging rape on a female under the age of consent, same must be proved, is no more sound in a case where the alleged injured party is a child than if the party was a woman, and in neither class of cases is it necessary to prove force unless force is the only means charged in the indictment. If any other means be charged in conjunction with force, the case may-be made by proof of such other means and the allegation of force be ignored.
It would be of no benefit for us to review the various authorities cited and discussed by appellant in an effort to combat what we said in reference to the admission of testimony offered by the state in its rebuttal, showing other acts of intercourse between appellant and prosecutrix. The state in no case can be required to make by its facts an exact replica of some other case that has been before the court and about which it has expressed an opinion, before the doctrines laid down in such earlier case can be held to have application. Whatever be the exact question raised and discussed in regard to other cases on their facts, if it be true in the case on trial that the testimony as to other - acts did tend to solve issues put in dispute by the defensive testimony, such testimony would be admissible.
We have again reviewed the evidence heard on the application for change of venue. Appellant introduced a number of witnesses, most of whom affirmed that in their opinion, taking into consideration the method of selecting the jury, appellant could not obtain a fair i and impartial trial in Franklin county. The witnesses had no suggestion as to any better method of selecting a jury. Some of appellant’s witnesses thought he could obtain a fair trial in said county. ' The state introduced a number of persons disclosing extensive acquaintance in the county who affirmed their belief that appellant could obtain a fair trial therein. Further than the fact that the case had been tried before, it is not shown that any particular publicity had attended either the commission of the offense or its trial. Upon its facts it was not of such unusual nature as to create comment or cause or arouse public sentiment. We see no reason for concluding that the trial court overrode the. limits of his discretion in refusing to change the venue.
The preponderance of the testimony of the eleven jurors, heard in support of appellant’s contention that the jury received other evidence, seems to be against appellant’s contention. Some of the jurors had heard of the case before' they were ’taken on the jury, and one of them affirmed that he disclosed the fact that he had heard what the former verdict was to counsel before he was so accepted. No mention of the former trial or the verdict therein was made by any of the jurors until after they had voted guilty and had agreed on their verdict. . It was shown that during the trial it was revealed that there had been a former trial, but, as stated, no juror discussed or referred to this fact while in the jury room. What juror Deaton heard said does not seem to have been said with reference to any particular party. If so, that fact is not shown. We think the trial judge within his province in overruling the motion for new trial. '
Being unable to agree with any of the contentions made by appellant, the motion for rehearing will be overruled.