Appellant again complains of the fact that the court repeated a part of his charge. The part referred to was in reference to the fact that penetration must have been established beyond a reasonable doubt before conviction, etc. We find nothing in that part of the charge so repeated which was calculated to weaken in any way a defensive theory, or that tended to lead the jury to give more weight or credence to any theory of the state, and we see no possibility of injury to the appellant by such repetition.
No special charges were asked presenting any theory of the case advanced by the appellant. As far as we can ascertain he had no theory save that he did not do what prosecutrix claimed he had done. The court below told the jury in the charge that if they had a reasonable doubt as to his guilt they should acquit him.
The charge of the court places an unnecessary burden on the state in that after telling the jury to convict if they believed beyond a reasonable doubt that he had carnal knowledge of the prosecutrix, the court further told them, in substance, that they could only convict if they believed beyond a reasonable doubt that prosecutrix was a woman and that the assault was by force and without the consent of said prosecutrix. As stated in our original opinion, there was no dispute of the fact that the girl was under the age of consent. These matters are touched on in *Page 135 the opinion in Dyer v. State, 283 S.W. 820. We see no ground for complaint on the part of appellant. Those are the matters set up in appellant's motion for rehearing, and being unable to agree with any of them, said motion will be overruled.
Overruled.