
    MONTOYA v. STATE.
    (No. 4023.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    1. Rape @=>59(4) — Statutory Provisions— “Eraud.” „„ . .
    „„ . . Under Pen. Code 1911, art. 1066, providing that as applicable to rape fraud must consist in administering, without her knowledge or consent, some substance producing unnatural sexual desire, or such stupor as prevents or weakens resistance and committing the offense while she is under the influence of such substance, an instruction which ignored that part of the statute requiring the substance to be administered without knowledge or consent was erroneous.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 91; Dec. Dig. @=>59(4).
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Eraud.]
    2. Rape @=>11 — Statutory Provisions — Threats.
    Under Pen. Code 1911, art. 1065, providing that threats as applicable to rape shall be such as might reasonably create a just fear of death or great bodily harm, a statement by the defendant to the prosecutrix that if she did not submit he would not take her back, but ■leave her in the road some four or five miles from their destination, is not such a threat that would'give just fear of death or great bodily harm.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 10; Dee. Dig. @=>11.]
    3. Rape @=538(2) — Evidence—Eorce—Use op Liquor.
    In a prosecution for rape, under Pen. Code 1911, art. 1064, defining force as applied to rape as that which might reasonably be supposed sufficient to overcome resistance, considering the relative strength of the parties and other circumstances, evidence that plaintiff was given beer and that the defendant threatened to leave her in the road if she did not submit was admissible on the issue of force.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 49; Dec. Dig. @=>38(2).]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Domingo Montoya was convicted of rape, and he appeals.
    Reversed and remanded.
    Elfers & Pelphre'y and W. D. 1-Iowe, all of -El Paso, for appellant. P. H. Marcum, of El Paso, and C. C. McDonald, Asst. Atiy. Gen., ■for the State.
   HARPER, J.

Appellant was convicted of rape, and his punishment assessed at 5 years’ confinement in the penitentiary.

The indictment contains two counts, one charging rape on a girl under 15 years of age, and the other charging rape by force, threats, and fraud. The first count was withdrawn from the consideration of the jury; the evidence showing the girl to be more than 15 years of age. The court submitted only the second count in the indictment — 1‘ape by force, threats, and fraud. The court in his charge defined force, threats, and fraud; the paragraph on fraud reading as follows:

“ ‘Eraud,’ as that term is used in this charge, must consist in the use of some substance producing an unnatural sexual desire, or such stupor as prevents or weakens resistance and committing the offense under the influence of such substance. It is a presumption of law which cannot be rebutted by testimony that no consent was given under the circumstances mentioned in this article.”

As applicable to rape, “fraud” is defined by . article 1066 of the Penal Code, and reads;

“The ‘fraud’ must consist * * ⅜ in administering, without her knowledge or consent, some substance producing unnatural sexual desire or such stupor as prevents,” etc.

It will be noticed the definition as given by the court ignores and omits that part of the statute which, to constitute fraud in a rape case, requires the substance be administered “without the .knowledge or consent” of the woman or girl. That is made an essential element, and should not have been omitted from the definition of the term, and this but demonstrates there is no element of rape by fraud made by the evidence in this case. The only thing given or administered to the girl was beer. She in company with appellant and two others, went to the “White House,” a roadside inn or saloon near El Paso, and while there all four of the parties drank beer. The beer the prosecutrix drank was knowingly drunk by her, and it was not administered to her by force or without her consent. She voluntarily drank it when tendered to her. She says she only drank a half glass, while perhaps there is other testimony indicating that she drank two glasses of beer. Whatever the amount was she drank, it was of her own accord, and there is no evidence that there was administered to her any substance without her knowledge or consent, and the court erred in defining and submitting rape by this mode and means.

Again he defined threats, which as applicable to rape is defined to be such as “might reasonably create a just fear of death or great bodily harm.” The only evidence of threats in the record is that appellant told her and her girl companion, 'Petra Morales, that if they did not submit to him and his companion, only called “Nieto” in the record, they would not take them back to El Paso in the automobile, but leave them there on the road. This occurred about half way between the “White House” and El Paso — some four or five miles from El Paso. This threat is admissible as tending to show the force used on that occasion, but it is not such a threat as would give “just fear of death or great bodily harm.” The evidence would not support a verdict of rape accomplished by threats, as definid by our Code (article 1065), and the court erred in defining threats and submitting rape by threats to the jury.

The contention that the evidence wholly fails to make a case of rape by either of the means named in the statute cannot be sustained. There is evidence of force being used, and on this issue it would be proper to admit the evidence that the prosecutrix was given beer at the “White House Inn” or saloon, and that appellant threatened to leave her in the road if she did not submit. Beer, if taken in sufficient quantity by one unaccustomed to drinking it, might and probably would have some effect on the resistance offered, and should be considered in connection with the other testimony on the issue of force, as defined by the Code (article 1064). The threat to leave the girls in the road five miles from El Paso is an element of force. But while the evidence is admissible on the question of force, yet it does not raise the issue that the offense, if committed, was committed by either threats or fraud as defined by our Code. On another trial, if the evidence is the same, the evidence will be admitted on the issue of force, but the court will submit only that issue to the jury, and will not submit rape by either threats or fraud.

While there are a number of other bills of exception in the record, we do not deem it necessary to discuss them. Those complaining that the jury discussed appellant’s failure to testify, of the remarks of the court, and of counsel for the prosecution, will not likely occur on another trial. None of the others present error.

The judgment is reversed, and the cause is remanded. 
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     