Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of five years, and he prosecutes this appeal.
Appellant excepts to the charge of the court because in the charge, on the question of penetration, it instructed the jury that this could be proved by positive or circumstantial evidence. The proof on this subject was of a positive nature, and we fail to see how appellant was injured by the charge given, or by the failure of the court to further define circumstantial evidence.
The testimony elicited from the witness Isaac McLennan on cross-examination by the State was clearly incompetent, but no exception was made to it until after the answer had been elicited; and then the court was requested to strike out and suppress the same, and the jury were instructed to disregard the same. We would also observe in this connection that the question immediately following this transaction, propounded by the county attorney, was clearly of an illegal character, and he must have known that it was illegal when he propounded it. This conduct, while reprehensible, is not of that character that would authorize us to reverse this case.
There is nothing in appellant's motion in arrest of judgment based on the failure of the indictment to charge that the prosecutrix was not the wife of appellant. This, under the statute, applies only to two characters of persons on whom a rape may be committed. One is rape upon a woman being so mentally diseased at the time as to have no will to oppose the act of carnal knowledge, and the other is the carnal knowledge of a female under the age of 15 years. In all such cases the statute requires that the indictment should contain the allegation that such person is not the wife of the defendant. We do not understand this to apply to an ordinary charge of rape by force, threats, or fraud on a woman of the age of consent. No error appearing, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.