The chief ground set forth in appellant's motion for a rehearing is the insufficiency of the evidence to support a verdict of rape by force or threats. The motion is directed to the language of the original opinion and particularly the sixth paragraph thereof holding that, though the evidence of resistance standing alone may not be sufficient to authorize the conviction, and even though the threats alone may be insufficient, yet the two taken together may, in some cases, be held to be sufficient.
This paragraph may well be eliminated from the opinion. It is more a discussion of the general law as it is found and, while applicable to the case at bar, it is not necessary to resort to that. The evidence of resistance as found in the record, if believed by the jury, is amply sufficient to support the conviction. If the opinion had stated that this evidence under the surrounding circumstances is sufficient there could have been no disagreement with that. *Page 864 And yet, that is exactly what the opinion amounts to when properly understood.
In view of the insistance of appellant's motion, we support our conclusion that the evidence is sufficient with a more detailed statement of the resistance offered, as testified to by the prosecutrix. The witness said that when they had driven down the Houston Highway she was begging him to take her back home. He turned down a side road and she thought he was going to turn around. Instead, he stopped the car and sat there about two minutes; he locked his arms around her; she tried to get away but couldn't; she begged him to let her go home; her arms were fastened under his so that she could not use them; he was stronger; she became frightened and started crying and begged him to take her home. All of a sudden he said, 'I told you to shut up, I have had enough of your damn foolishness.' He then put his first against her face and said, 'Do you want me to hit you?' She was crying and begging him all the time. After that he began choking her, with both hands around her throat, and telling her to shut up and listen to him. He was choking her hard with both hands and kept repeating for her to shut up until she stopped. She said, 'I was awfully frightened.' He then told her that he was going to have her, he wanted her and he was going to have her, and if she '* * * so much as raised a hand and tried to stop him he was going to choke me to death.' She said she had hold of his arms and tried to pull away but couldn't. She testified that she was afraid of him and 'I believed that if I tried to resist him that he would kill me.' After he shoved her over into the back seat, as stated in the original opinion, she was more afraid of him. She said she was afraid to talk; that she was hysterical and didn't know what to do. He performed his act without her consent and as he was doing so she said she tried to keep him off to some extent, but she was scared. She thought he would kill her as he said he would.
The threats described by prosecutrix constitute a part of the surrounding circumstances and are directly responsible for any failure on her part, if in fact there should be any failure, to resist to the limit of her strength.
It is our conclusion, as above stated, that the resistance as testified to by the prosecutrix is amply sufficient to comply with the requirements of the statute.
Appellant's motion for a rehearing is overruled.