
    PATTON v. STATE.
    (No. 10337.)
    (Court of Criminal Appeals of Texas.
    Oct. 6, 1926.)
    1. Rape <@=>27 — Indictment charging defendant with ravishing and having carnal knowledge of prosecutrix is sufficient to sustain conviction of rape by force or by acquiescence of female under eighteen.
    Under indictment charging that defendant assaulted, ravished and had carnal knowledge with prosecutrix, conviction could be sustained on proof of either rape by force or by acquiescence of female below age of eighteen years; word “ravish” ehaz-ging rape by force, and word “carnal knowledge” permitting proof of other phases of rape.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Carnal Knowledge; Ravish. ]
    2. Criminal law <@=>678(5) — Conviction may bo had on any of several acts of intercourse proved to have occurred on or about date averred in indictment in absence of demand for election.
    Where prosecutrix testified as to several acts of intercourse on or about date averred in indictment, and there was no demand for election, jury was privileged to convict on any of such acts.
    
      3. Criminal law <©=>721 (5)— State’s argument that prosecutrix’s testimony stood uncontra-dicted held not comment on defendant’s failure to testify where witness was available to contradict prosecutrix (Code Cr. Proe. 1925, art. 710).
    Argument of prosecuting attorney, in prosecution for rape, that testimony of prosecutrix stands uncontradicted was' not a comment on defendant’s failure to testify forbidden by Code Cr. Proc. 1925, art. 710, where a witness was present during some of alleged acts of intercourse and was available to defendant to contradict prosecutrix.
    Appeal from District Court, Hopkins County; J. M. Melson, Judge.
    Ellis Patton was convicted of rape, and he appeals.
    Affirmed.
    J. K. Brim and Grover Sellers, both of Sul-phur Springs, for appellant.
    Sam D. Stinson, State’s Atty.,' of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of five years.

In the indictment it is charged that the appellant “did make an assault upon and did then and there ravish and have carnal knowledge,” etc. The prosecutrix was averred to be under 15 years of age. Under this indictment, a conviction could be sustained upon proof of either rape by force or by acquiescence of a female whose age was below 18 years. See Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769. Such an indictment, by the use of the word “ravish,” charges rape by force, but the additional words, “have carnal knowledge,” embraced in the same count, permits proof of the other phases of rape. See Dyer v. State (Tex. Cr. App.) 283 S. W. 820.

In instructing the jury upon the issue of insanity, the court used a charge recommended in Willson’s Criminal Forms, No. 930. The use of this charge has been sanctioned by this court ón a number of occasions. See Webb v. State, 5 Tex. App. 596; Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638; Parker v. State, 91 Tex. Cr. R. 70, 75, 238 S. W. 943.

To establish the conviction, the state relied upon the testimony of Lillie May Patton, the alleged injured party, who testified that she was 13 years of age, and that the appellant was the father of the prosecutrix. The appellant did not testify- as a witness, but relied upon the defense of insanity, upon which issue several witnesses testified. The date of the offense was laid on or about the 24th day of December. The prosecutrix testified that on the 24th day of December the carnal act was performed in a barn. Both on cross-examination and on redirect examination she testified to two other acts of carnal intercourse with the appellant. On at least one of these occasions, according to the prosecu-trix,'her mother was present, knew of the act, and threatened to call the officers. If we correctly understand the record, according to her testimony, one of these acts preceded the act in the barn about a-month. ■

There was no demand for an election as to the transaction relied upon. The court, in instructing the jury, did not confine their inquiry to the act in the barn, and was not more definite in his charge with reference to the date than that averred in the indictment— namely, on or about the 24th day of-December, 1925. There being evidence of other acts on or about that date, either of them was available to the state as a basis for a conviction. If the record were in a condition to confine the jury to the consideration of the act in the barn as a basis for conviction, a question less difficult would be presented. As we understand the record, however, the prosecutrix testified to two other acts of intercourse, at least one of which was witnessed by her mother, the wife of the appellant, a witness available to him but not to the state. The jury was privileged to convict upon either of these acts, because they were all on or about the 24th day of December, 1925.

Appellant complains of the failure of the court to instruct the jury to disregard certain remarks of the prosecuting attorney. The bill recites that the prosecutrix testified that her father had an act of intercourse with her in a barn on the 24th of December, and that there was no one else present at the barn. The district attorney, in the course of his argument, said:

“That little girl, Lillie May Patton, testified to this act as charged and stands here uncon-tradicted. * * * You have heard her testimony, and that little girl stands here uncontra-dicted.”

The statute, article 710, C. C. P. 1925, forbids the state’s counsel to comment upon the failure of one accused of crime to testify in his own behalf. The import of the statute is to declare that counsel, in argument, must refrain from making use of the silence of the accused during his trial against him by either direct of indirect means. When the comment is not direct but is claimed as an indirect use of his silence against him, we have heretofore stated the rule thus:

“The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language ■ which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence to which remarks may reasonably have been applied by the jury, the statute is not transgressed.” Boone v. State, 90 Tex. Or. R. 377, 235 S. W. 581.

Making application of this rule to the present facts, we are advised by the record that on one or more of the occasions of which the prosecutrix testified the appellant had sexual intercourse with her, a witness was present who was available to the appellant to contradict the prosecutrix if her testimony was untrue. As the matter comes before us, the case does not come within the class which requires or authorizes a reversal of the judgment because of the comment mentioned.

The judgment is affirmed. 
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