State's counsel insists in his motion for rehearing that the conviction should stand on the theory that the appellant was in law responsible for the act of Alexander in his intercourse with the prosecutrix. The charge of the court is so framed as to exclude the idea that the appellant was convicted as a principal for the act of Alexander. From the only charge submitting *Page 109 the facts to the jury for finding the following quotation is taken:
"If, therefore, you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Bill Coots, did have carnal knowledge of said Sarah Murrah, a female, * * * and did penetrate her female organ with his male organ, etc."
The prosecutrix was over fifteen and under eighteen years of age, and there was evidence that she voluntarily submitted to the embraces of Alexander prior to the act of intercourse with the appellant. If in fact the prosecutrix, being over fifteen years of age, acquiesced in the act of intercourse with Alexander and thereafter voluntarily engaged in a like act with the appellant, he could not be convicted of rape for the act with her, for the reason that the previous act with Alexander rendered her unchaste. It is not intended to convey the idea that the act with Alexander was with the acquiescence of the prosecutrix. The extent to which the original opinion and this extends is to declare that under the evidence an issue of fact was presented as to whether the act with Alexander was with the consent or acquiescence of the prosecutrix. If in fact she consented to that act, the appellant's conviction for his own subsequent act of intercourse with her could be sustained only on the ground of force. His conviction in the present instance is not for rape by force but for rape of a girl under eighteen years of age without force. To sustain such conviction for the actual carnal act by the appellant, it would be necessary that there be a finding by the jury under proper instruction that the act with Alexander was not with the consent of the prosecutrix.
The motion for rehearing is overruled.
Overruled.