ON APPELLANT’S MOTION FOR REHEARING
WOODLEY, Presiding Judge.The appellant agrees with our holding that the indictment is sufficient to support a conviction for either rape by force or statutory rape. He correctly contends, liowever, that under Art. 1183 Vernon’s Ann.P.C., which defines the offense of statutory rape as well as rape by force, consent of the female is a defense to rape by force and in consent cases where the female is 15 years of age or older, previous unchastity is a defense to statutory rape, though the accused may have contributed to her loss of chastity. Cloninger v. State, 91 Tex.Cr.R. 143, 237 S.W. 288.
The prosecutrix testified to only one act of intercourse. She fixed the time as on or about January 19, 1962, and the place as in her bedroom in the home of her parents. She testified that she was born November 4, 1946, and that she was not the wife of the appellant.
The state then offered appellant’s voluntary statement in which he stated: “During the year 1961 I became intimate with - (prosecutrix) and she became pregnant as a result of our being intimate. On Friday night, January 19, 1962, I went to the house of- (prosecutrix) in Caldwell, Texas, and I knocked on the window on the side of the house, which was the bedroom window of - (prosecutrix). - (prosecutrix) unlatched the screen and let me in the house. I got in the bed with her and had an act of sexual intercourse with her in her bed in her bedroom. This must have been about 8 P.M.”
The state thus corroborated the testimony of the prosecutrix as to the act of intercourse on or about the date alleged in the indictment but introduced evidence which exculpated the appellant and proved or raised the issue that such sexual intercourse was with the consent of the prose-cutrix and not by force, and that it was not her first act of intercourse.
Where, in a trial upon a plea of guilty, the facts placed in evidence by the state make evident the innocence of the ■defendant, or reasonably and fairly present such an issue of fact, the plea of guilty should be withdrawn by the court and a plea of not guilty entered. Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460; Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897; Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975; Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679; Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153.
Appellant’s motion for rehearing is granted, the order of affirmance is set aside and the judgment is reversed and the cause remanded.