
    DIGGLES v. STATE.
    (No. 8648.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1925.)
    1. Rape <$==>51 (4)—Threat of whipping held not to sustain conviction of rape by threats.
    Where reliance in proving rape is upon threats, testimony must show such threat or statement as would operate upon mind of prosecutrix to cause her to yield; therefore evidence of threat of whipping if prosecutrix told held not to sustain conviction of rape by threats.
    2. Rape <$=>51 (4)—Evidence held insufficient to sustain conviction of rape by force, threats, and fraud.
    Evidence held insufficient to sustain conviction of rape by force, threats, and fraud, where threat was to whip prosecutrix if she told, and where there was no other evidence of force or fraud or outcry or remonstrance.
    Appeal-from District Court, Jasper County; V. H. Stark, Judge.
    George Diggles was convicted of rape, and he( appeals.
    Reversed and remanded.
    G. E. Richardson, of Jasper, for appellant.
    ' Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jasper county of rape, and his punishment fixed at five years in the penitentiary.

There is but one count in the indictment, and it charges rape by force, threats, and fraud. Prosecutrix is the daughter of appellant. She testified that on the night of the alleged occurrence she was in bed with a younger sister, and in another bed in the same room was her mother; that appellant came and got in bed with her and had intercourse with her; that he told her if she told it he would whip her. This is all the proof as to force, threats, or fraud. Manifestly there was no fraud, and nothing in the record evidences force. Granting that appellant told her that if she told it he would whip her, this wholly fails to show a threat having for its purpose the securing of carnal knowledge. Its only proper interpretation is a threat of punishment or violence if the fact of intercourse is communicated to some one else. This is not sufficient. When reliance is had upon threats, the testimony must show sueh threat or statement as would operate upon the mind of the injured female to cause her, by reason thereof, to yield her person to the ravisher. The evidence is not sufficient to support the verdict. In addition to what we have just said concerning the facts, the record is bare of any claim of outcry, resistance, or remonstrance. The only thing of this character is the statement of prosecutrix that she told her mother the next morning of what had occurred. The mother took the stand and testified that this was not true. Appellant, testifying in his own behalf, denied the transaction in toto.-These three were the only witnesses.

The judgment is reversed and the cause remanded. 
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