
    STRINGER v. STATE.
    (No. 9703.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1925.)
    1. Rape &wkey;>43(2) — State may prove condition’ and physical appearance of prosecutrix at time of reaching home and making complaint to mother.
    In prosecution for rape, state may prove condition and physical appearance of prosecu-trix at time of reaching home and making complaint to mother.
    2. Rape &wkey;>48(2) — Permitting mother to relate-details of transaction as told to her by pros-ecutrix heid error.
    In prosecution for rape, permitting mother to relate details of transaction as told to. her by prosecutrix after reaching home and-making complaint held error.
    3. Rape <&wkey;59(I6) — Refusal of charge that intercourse, coupled with passive acquiescence, is not rape by force held error.
    In prosecution for rape, refusal of instruction that intercourse, coupled with passive acquiescence, was not rape by force held error, in. view of evidence showing parties .were of relatively same age and strength, and evidence-tending to show there was no struggle.
    
      Commissioners’ Decision.
    Appeal from District Court, Floyd County; R. C. Joiner, Judge.
    Joe Stringer was convicted of rape, and lie appeals.
    Reversed and remanded.
    A. J. Fires, of Childress, and Chas. L. Black, of Austin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

Appellant was convicted in the district court of Floyd county of the offense of rape by force upon Miss Rena Smith, and his punishment assessed at 99 years in the penitentiary.

Appellant complains of the action of the court in permitting the mother of the prose-cutrix to testify, over his objection, that, when the prosecutrix entered the house, she asked her what was the matter, and she detailed to her the acts and facts of the alleged rape, and also to the court’s permitting the prosecutrix to testify upon reaching home she told her mother in detail what took place. It is the contention of the appellant that it was proper for the court to permit the witnesses to testify that she complained, but the court erred in permitting said witnesses to detail the transaction relative to the offense charged in his absence and in view of the time intervening between the time of the alleged rape and the time she reached her home. In support of said, contention he cites us to the authority of Reddick v. State, 35 Tex. Cr. R. 463, 34 S. W. 274, 60 Am. St. Rep. 56. Judge Hurt, rendering the opinion in the Reddick Case, wherein the facts are similar to the instant case, states:

“Now, as we have above stated, the prosecu-trix complained of the outrage to her brother-in-law on the next morning after the alleged rape. Some of the details were proven, but there was no objection. This was more than the state had a right to. until she was attacked. If appellant had objected to the introduction of the details in this matter, reserving his bill, then we would have held that there was error in admitting them.”

We think it is clearly admissible for the state to prove the condition and physical appearance of the prosecutrix at the time in question, and that she was crying and made complaint to her mother, but it was error to permit the state to have said witnesses relate the details of the transaction as original testimony in this case. Kearse v. State (Tex. Cr. App.) 88 S. W. 363; Underhill’s Criminal Evidence,. § 612.

The appellant insists that the court erred in the following portion of his general charge:

“You are instructed that, if you believe from the evidence that the said Rena Smith consented to the sexual intercourse with the said defendant, Joe Stringer, you will acquit the defendant, or, if you have a reasonable doubt thereof you will acquit the defendant.”

The appellant contends that said paragraph requires that the prosecutrix actually or expressly consented to same, and ignores the appellant’s defense and contention that he would not be guilty of said offense if she tacitly or passively consented to same, and in connection therewith presented to the court his special charge No. 1, which the equrt refused, as follows:

“Mere intercourse, coupled with passive acquiescence, is not rape by force. There must be resistance upon the part of the alleged raped female, dependent upon the circumstances sur'rounding her at the time and the relative strength of her and the defendant, and every exertion and means within her power must be made to prevent the penetration of the person of the woman; and, unless such means and exertion are used, the defendant should be acquitted, and, if you so find or have a reasonable doubt as to the facts, you will acquit the defendant.”

The evidence in this case raised a controverted issue as to prosecutrix’s consent by implication.. The evidence shows that the prosecutrix and the appellant were practically the same size, she weighing about 140 pounds' and he about 150 pounds; that the appellant was about a year younger, the pros-ecutrix being about 20 years old and the appellant about 19 years old. The doctor who examined the prosecutrix testified to finding small places on her person, which would indicate that she had not been in a violent struggle. This view of the testimony is also strengthened by the testimony of the appellant’s witnesses who testified to having examined the place where the alleged rape took place, and that they found no evidence of any struggle, and was supported also by evidence of the prosecutrix to the effect that appellant held both of her hands with one of his, and held his other hand over her mouth, and in this way accomplished the act of intercourse. We are of the opinion that the court erred in refusing to give defendant’s special charge, in view of the issues in this ease, to be considered in connection with that portion of the general charge complained of.

For the reasons above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and is accordingly so ordered.

PER CURIAM.

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