
    RITCHER v. STATE.
    (No. 6822.)
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1923.)
    iRape <©=359 (19) —Refusal to instruct as to defense of consent in submitting issue of aggravated assault held error.
    In submitting the issue of aggravated assault in a prosecution for assault with intent to rape, it was error to refuse to give an instruction presenting the sole defense of defendant that, while the prosecuting witness had not consented in terms to the acts charged, her conduct had been such as to lead defendant to believe his advances were agreeable to her, and that such advances as he made were under that belief.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Joe Riteher was convicted of aggravated assault, and he appeals.
    Reversed.
    Rodgers & Rodgers and Sid Crumpton, all of Texarkana, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Tried upon an indictment charging assault with intent to rape, appellant was convicted of aggravated assault; punishment fixed at a fine of $500 and confinement in the county jail for a period of 90 days.

The subject of the alleged assault was a young lady something over 18 yearé of age. She had known the appellant for about a year. He had visited her at her home and had been her escort on various occasions. During the day of the alleged offense, she met appellant at a certain drug store for the purpose of taking an automobile ride with him. She claims that after getting into the car, she insisted upon going directly to the home of Mr. and Mrs. Taylor, with whom she resided, but that appellant, contrary to her wishes, went to another part of the city near a certain park, and there, according to her testimony, the appellant, while sitting in the seat of the automooile, assaulted her. She left the car and went to a nearby house and .telephoned for Mrs. Taylor, who came for her, and together they went to the home of Mrs. Taylor, where appellant accompanied them, though he rode in his own car! After reaching the home, an interview took place, part of which was in the presence of Mrs. Taylor and part of which was private. In the presence of Mrs. Taylor, appellant apologized for his conduct and stated that he was willing to marry the girl at once. Upon his request for a private interview, he and the prosecutrix went into the bedroom together, where they remained, according to some of the testimony, for about two hours. According to the testimony of the prosecutrix, appellant had made love to her, kissed her, and embraced her upon previous occasions, and that on Saturday night preceding the assault, he had indulged in objectionable and indecent familiarity which she resented at the time but subsequently forgave. The place at which the assault took place was a public place, and the time was about 6 o’clock in the evening. There was testimony that on previous occasions the prosecutrix had permitted other young men to kiss her, and that appellant had also done so on various occasions. '

According to appellant’s testimony, lie and tlie prosecutrix liad been associates for some time. He bad visited ber at tbe Taylor borne and bad also escorted ber on various occasions. On Saturday night preceding tbe alleged offense on tbe Monday following, be paid her a visit, and* before leaving, about IX o’clock at night, be kissed and embraced ber a number of times with ber consent; also put bis band on ber breast, and later upon ber privates. She made no objection until tbe latter occurred, when she slapped him, and be went away, assuming that she was angry. -On tbe following day, be telephoned to tbe borne with tbe view of talking to Mr. Taylor about an engagement they bad. Tbe prosecutrix answered tbe telephone and began a friendly conversation with him, finally inviting him to go on a kodaking trip that afternoon. They went on the kodaking trip in company with Mrs. Taylor. ■ On tbe following evening, be made an engagement with her over tbe telephone to meet him for tbe purpose of taking an automobile ride. She suggested that when she got through work she would meet him at a certain drug store. They entered tbe automobile together about 6 o’clock in tbe evening and rode together without protest upoñ ber part to tbe place at which tbe assault is charged to have been made. He there loved ber and fondled ber, she making no protest until an automobile passed, at which time she said, “We .are caught,” and got out of the ear. She went to a bouse near by, and be also went there, and later to tbe home of tbe prosecutrix, where be bad an interview with ber in tbe presence of Mrs. Taylor and offered to marry tbe girl. He also had a private interview lasting, according to bis testimony, about two hours. He denied any effort to force ber to submit to intercourse or to force her in any respect to submit to his advances; declared that be bad no idea of having intercourse without ber consent, and in no event at tbe public place where tbe episode occurred. He testified that be belived them acceptable and agreeable to ber.

Preliminary to instructing tbe jury upon tbe law of assault with intent to rape, tbe court made a general abstract observation in his charge to tbe effect that if she consented to bis conduct, or if ber previous conduct was such as implied consent, tha.t it would not constitute an assault. These are not the words, but the substance, of tbe charge.

In submitting tbe issue of aggravated assault, tbe sole defensive idea presented was that of consent on tbe part of tbe prosecu-trix. Tbe appellant requested tbe court to embrace in bis charge bis affirmative defensive theory, namely, that although she did not consent in terms, ber previoui conduct bad been such as to lead tbe appellant to believe that bis advances were agreeable to ber, and that such advances as be made were made under this belief. Tbe special charge* embraced a well-settled rule of law in this state, and tbe court was not warranted in refusing to embody it in bis charge to tho. jury. See Shields v. State, 39 Tex. Cr. R. 14, 44 S. W. 844; Kerr v. State, 83 Tex. Cr. R. 474, 204 S. W. 107. Tbe refusal of it was abnoxious to tbe rule which requires that the defensive theory of one accused of crime, when raised by affirmative testimony, shall, be submitted to tbe jury in an affirmative charge when requested.

Because of tbe failure to amend bis charge or to give to the jury the special charge, tbe learned trial judge, in our opinion, fell into error of a material nature requiring tbe reversal of tbe judgment. It is so ordered. 
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