
    HOLMAN v. STATE.
    (No. 10167.)
    (Court of Criminal Appeals of Texas.
    May 12, 1926.)
    Rape <&wkey;4 — In prosecution for statutory rape, refusal to submit questions raised by evidence as to whether prosecutrix was over 15 and of previous, unchaste character held reversible error (Pen. Code 1925, art. 1183).
    In prosecution for statutory rape where evidence was sufficient to raise issues of uri-chaste character of prosecutrix at time of alleged offense and that she was more than 15 years of age at such time, refusal to submit such issues held reversible error, in view of Pen. Code 1925, art. 1183, making previous un-chastity of prosecutrix over 15 a defense.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Ilosey, Judge.
    M. D. Holman was convicted of rape, and he appeals.
    Reversed and remanded. ’
    Virgil R. Parker and Clarence Parker, both of Port Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BERRY, J.

The offense is rape, and the punishment is five years in the penitentiary.

.The indictment charges that the appellant had carnal knowledge of prosecutrix, a female under the age of 18 years, and not being the wife of the appellant.

Prosecutrix testified that she was but 12 years of age, and there was other testimony corroborating her to this effect. Her testimony further showed that the'act of penetration took place without her consent, but we think it clear from the record that such force is not shown as was necessary to overcome all resistance; in other words, we conclude from the testimony that the issue of rápe by force was not established by the testimony, and the trial court evidently took this view of the case,, as he only submitted the question of rape by consent.

The appellant’s testimony is entirely sufficient to raise the issue that the prosecutrix was of unchaste character at the time of the alleged rape, and it is also sufficient to raise the issue that she was more than 15 years of age at the time the offense is alleged to have been committed.

The only question that we deem it necessary to discuss is as to the action of the court in refusing to give the substance of appellant’s special charge No. 3. In this charge the appellant sought to have the jury instructed that, in the event they did not find' beyond a reasonable doubt that the prosecu-trix was under 15 years of age at the time of the alleged offense, that then the jury must find beyond a reasonable doubt that the said prosecutrix was of chaste character at said time before the defendant could he convicted. Article 1183 of the 1925 Revision of the Penal Code provides, in effect, that rape is'constituted by “carnal knowledge of a female under the age of 18 years, other than the wife of the person, with or without her consent and with or without the use of force, threats, or fraud: Provided, that if she is fifteen' years of age or over the defendant may show in consent cases she was not of previous chaste eharaeter as a defense."

The court nowhere in his charge submitted the last quoted provision of the statute to the jury. On the contrary, he simply told the jury that if they found from the evidence beyond a reasonable doubt that on the 23d day of April, 1925, in the county of Tarrant and state of Texas, M. D. Holman had carnal knowledge of Henrietta Jefferson with or without her consent, with or without the use of force, threats, or fraud, and that she was a female, and that she was not his wife, and that she was under the age of 18 years, then to find the defendant guilty of the offense as charged and assess his punishment at death or by confinement in the penitentiary for a lieriod of years not less than five.

We are of the opinion that the learned trial judge fell into error in not submitting for the determination of the jury the question of the previous chaste character of the prosecuting witness, for, as above stated, there was ample evidence raising the issues both that she was more than 15 years of age and that she was of unchaste character. The special charge offered, while perhaps not an accurate statement of the law, was, we think, entirely sufficient to call the court’s attention to his omission to submit this issue. Tyler v. State, 46 Tex. Cr. R. 10, 79 S. W. 558.

For the error of the court above discussed, we are of the opinion that the judgment should he reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  