
    BAYLESS v. STATE.
    (No. 8219.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.)
    t. Rapo <@=»4 — If intercourse voluntary, reasonable doubt as to previous chastity precludes conviction of rape of female between 15 and 18.
    If jury found that accused’s intercourse with prosecutrix (under the age of 18) was with her consent and further found her to have been over 15 at the time an acquittal under Pen. Code, art. 1068, as amended by Acts 85th Leg. (1918) 4th Called Sess. c. 50, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, art. 1063), should have followed if jury had reasonable doubt whether' prior to the date of offense the prosecutrix was unchaste.
    2. Rape <@=359(8) — Charge on issue of previous unchaste character held inadequate.
    In a prosecution for rape of a female un-. der the age of 18, a charge on the issue of previous unchaste character of prosecutrix held inadequate to advise jury that a want of ehas-tity might result from her previous acts of intercourse with accused as well as from such acts with other persons.
    3. Rape <@=34 — Previous “unchastity” defined.
    Prosecutrix was “unchaste” if prior to the alleged rape she- voluntarily submitted to carnal knowledge with accused or others.
    [Ed. Note. — For other definitions, see Words and Phrases. First and Second Series, • Unchaste — Unchastity.]
    <@=sFor other cases see same topic and ICEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Delta County ; Geo. B. Hall, Judge.
    Beed Bayless was convicted of rape, and he appeals.
    Beversed and remanded. <
    C. C. McKinney, of Cooper, and Henry Wilson, of Dallas, for appellant.
    Tom Gafrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MOBBOW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 25 years.

The appellant, a youth 17 years of age, had carnal knowledge of the prosecutrix. She testified that the appellant and another forced her to yield. The circumstances show, and the jury found, that she voluntarily submitted. There was a sharp conflict touching the age of the prosecutrix. It is made clear that she was not as much as 18 years of age. The controversy was whether she was under 15 years. A statement of the evidence upon this issue is deemed unnecessary. The trial was conducted upon the theory that the question was a controverted one, and the issue was submitted to the jury by the court; under the evidence he would not have been justified in doing otherwise. There was much testimony, both direct and circumstantial, that the act upon which the prosecution is founded was not the first experience of the prose-cutrix. There is much cogent testimony leading to the conclusion that on former occasions she had submitted her person both to the appellant and others.'

Relating the occasion upon which the conviction rests, she testified that both the appellant and Marvin Ffazier had intercourse with her; that the act with Marvin preceded that with the appellant. The jury found that this was not without her voluntary acquiescence. Having found upon sufficient evidence that'the act was voluntary, ■to warrant a conviction, it was necessary that they further find that at that time she was more than 15 years of age and was not of previous unchaste character. This is statutory. Penal Code, art. 1063, amended by Acts of 35th Leg., 4th Called Session, c. 50, § 1 (Vernon’s Ann. Pen. Code Supp.-1922, art. 1063). That is to say, if the jury found the prosecutrix to have been over 15 years of age at the date of the alleged offense, an acquittal should have followed if the evidence left in the minds of the jury a reasonable doubt whether prior to the date of the offense the prosecutrix had voluntarily had intercourse with the appellant or with some other person. Simpson v. State, 93 Tex. Cr. R. 303, 247 S. W. 548; Cloniger v. State, 91 Tex. Cr. R. 143, 237 S. W. 288; Pinkerton v. State, 92 Tex. Cr. R. 449, 244 S. W. 606; Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 991.

The learned trial judge, recognizing the rule stated, embraced in his charge language to guide the jury. From paragraphs 7 and 8 these quotations are taken:

«* * * Qr jf you Relieve from the evidence that the said Almeda Wilson, at the time of such carnal knowledge, was between the ages of 15 and 18 years; and if you further believe from the evidence that prior to the time the said Reed Bayless had such carnal knowledge of the said Almeda Wilson that the said Almeda Wilson was of chaste character, that is, that she had not theretofore with her consent had carnal knowledge with any other person, then you will find the defendant guilty as charged in the first count in the indictment.
“Unless you believe from the evidence beyond a reasonable doubt that the said Almeda Wilson, at the time of said' carnal knowledge charged in the indictment, was under the age of 15 years, and you believe from the evidence that the said Almeda Wilson was unchaste at the time of said carnal knowledge, that is, that she had not theretofore with her consent had carnal knowledge with any other person, then you will not find defendant guilty on said first count in the indictment.”

The language quoted was made the subject of exception in the court below and is here criticized upon the ground that it does not make clear to the jury the rule of law stated above. The charge is deemed inadequate to advise the jury that a want of chastity might result from her previous acts of intercourse with the appellant as well as .from such acts with other persons. A special charge which would have corrected this fault was requested and refused.

The second paragraph quoted is justly criticized as confusing and contradictory. It was not necessary that the proof show the prosecutrix to be under the age of 15 years, but it was ess.ential that she be of chaste character. “Unchaste,” as defined in the paragraph of the charge in question, was that of one who had not theretofore voluntarily submitted to carnal knowledge with another person. The converse is the law; that is, one was unchaste who had theretofore submitted to such carnal knowledge. The state’s attorney concedes that there was error committed prejudicial to the rights of the appellant. In this view we concur.

The judgment is therefore reversed, and the cause remanded.  