
    WHITE v. STATE.
    (No. 11419.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    1. Rape <⅜=>43(I) — 'Testimony showing mentally diseased condition of prosecutrix was admissible in prosecution for rape by force and without consent.
    In prosecution for rape by force and without female’s consent, testimony showing mentally diseased condition of prosecutrix was admissible.
    2. Witnesses <§=41 — Prosecutrix is incompetent as witness in rape prosecution, based on her mental incapacity to consent.
    In prosecution for rape under indictment charging that prosecutrix was so mentally diseased as to have no will to oppose act, prose-cutrix is incompetent as a witness against defendant.
    3. Rape <§=⅜>1 (6) — State, by introducing prose-cutrix as witness in prosecution for rape by force, vouches for her sanity.
    In prosecution for rape by force and without consent, state, by introducing prosecutrix as a witness, vouches for her sanity.
    4. Rape <§=351 (4) — Prosecutrix’s testimony held insufficient to sustain conviction of rape by force and without consent.
    Prosecutrix’s testimony held insufficient to sustain conviction for rape by force and without prosecutrix’s consent.
    Commissioners’ Decision.
    Appeal from District Court, Taylor County ; M. S. Long, Judge.
    D. M. White was convicted of rape by force without prosecutrix’s consent, and he appeals.
    Reversed and remanded.
    Kirby, King & Overshiner, Letcher D. King, and E. W. Wilson, all of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The first.count of the indictment charges appellant with the rape of Jewel Spain, “she being then and there so mentally diseased at the time of said carnal knowledge as to have no will to oppose said act of carnal knowledge, and the said D. M. White then and there knowing her to be so mentally diseased.” The second count charges rape by force and threats, and the third count charges rape by force without her consent. The first two counts of the indictment were dismissed, and the case was submitted on the third count.

The verdict of the jury found appellant guilty under the third count, and assessed his punishment at 15 years’ confinement in the penitentiary.

Complaint is made of the introduction of testimony showing the mentally diseased condition of prosecutrix. This was admissible under the circumstances of this case on the issue of rape by force and without consent. Segrest v. State (Tex. Or. App.) 57 S. W. 845; Baldwin v. State, 15 Tex. App. 275.

Prosecutrix was introduced as a witness by the state. If the case had been submitted under the first count of the indictment and under the evidence as produced by the state, she would have been incompetent as a witness against appellant. Lee v. State, 43 Tex. Or. R. 285, 64 S. W. 1047; Thompson v. State, 33 Tex. Cr. R. 472, 26 S. W. 987; Cokeley v. State, 87 Tex. Cr. R. 256, 220 S. W. 1099. Such count, however, was dropped, and, the trial being upon the count charging rape by force, her sanity was vouched for by the state, quoting:

“Is she a competent witness? The state said so. * * * When the prosecution introduced her as a witness, it said to the jury, ⅛ effect, that the witness was then sane, and was sane at the time when the events happened of which she is called upon to testify.” Thompson v. State, 33 Tex. Cr. R. 472, 26 S. W. 987.

With, this presumption of sanity obtaining, she testified to the immediate facts surrounding the alleged criminal act as follows:

Direct examination:

“You know what happened back there. He threw me down. He taken hold of me. He put his hands on me. He put his hands right here (indicating). Then he laid me down. I hollered. The defendant did that, you know what. I know what a man’s private parts are, what his male organs are. I know what my private parts are. He put his private parts into my private parts. It pained me, hurt me. I tried to keep him from doing it that night. I can’t holler very loud. I can’t holler any louder than that (indicating). * * * I did not tell him that he could do that to me. I tried to get away from him. He wouldn’t let me. He had hold of me on my arm. I tried to get away from him, and I couldn’t.

OrOjSS-examination:

“All the time he was doing this, I was doing nothing. I didn’t resist, I screamed. * * * When he pulled me in behind this lumber yard, I never done nothing; never said anything. I didn’t -resist, I just went in there. I know for sure whether this defendant’s male organ entered my female organs; it didn’t. If it had entered it, I would have been aware of the fact.”

Redirect examination:

“I have understood all that he has been asking me about. The defendant that night put his male organ into my female organ. I didn’t ask him to do that. I didn’t refuse to let him do that. When he started behind this lumber yard with me, I did not go willingly; he had hold of me; he never turned me loose. I told him I wanted to go home. I says, ‘Mr. White, let’s go home:’ He says, ‘No; stay here.’ He took me to the alley behind the lumber yard, and laid me down on the ground.”

Recross-examination:

“After he took me back there, I told him I didn’t want to do that, and that is all there was to it. He didn’t wrestle with me; he just got on me; I just laid down and he got on top of me. I didn’t make any outcry or attempt to get out from under him. I could have got out from under him if I had wanted to.”

The court charged the jury in part as follows:

“The force used must have been such as might reasonably be supposed sufficient to overcome all resistance within her power, taking into consideration the relative strength of the parties and other circumstances in the case.”

Mr. Branch lays down the rule as to the' forcee necessary in rape cases in the following language:

“Threats apart, every exertion in the power of the woman, under the circumstances, must be made to prevent the penetration of her person, or consent will be presumed.” Branch’s P. O. p. 998; Mooney v. State, 29 Tex. App. 257, 15 S. W. 724.

The definition of force given by the court in his charge and quoted above seems to have correctly stated the rule. Measured by this, is the testimony sufficient to sustain a conviction under the third count of the indictment? Her final testimony, after being twice examined by the state, answers the question:

“I just laid down, and he got on top of me. I didn’t make any outcry or attempt to get out from under him. I could have got out from under him if I had wanted to.”

Under her evidence and the plain terms of the law, we have no alternative except to reverse and remand this case upon the insufficiency of the evidence to sustain the third count of the indictment, and it is accordingly so ordered.

PER OURIAM. 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. 
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