
    MULLINS v. STATE.
    (No. 5938.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1920.)
    1. Criminal law <&wkey;556, 781(8) — State bound by exculpatory statement in confession, unless disproved; effect of exculpatory statements should be submitted to jury.
    Where the state introduced a confession by defendant to prove the offense of rape, and the confession contained statements which negatived penetration, the state was bound by the exculpatory statements contained therein unless disproved, and it was error for the court to refuse to instruct as to the force and effect of the exculpatory statements.
    2. Rape <s&wkey;7— Penetration an essential element.
    Penetration is an essential element of the crime of rape.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Tom Mullins was convicted of rape, and he appeals.
    Reversed and remanded.
    C. S. Parmer, of Waco, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of rape, and the jury assessed his punishment at 15 years in the penitentiary.

The case involves three major propositions: One of insanity; second, the evidence does not show he was guilty of rape; and, third, that the court erred in not charging the jury that if they believed the statement in appellant’s confession, introduced by the state, they would acquit of rape.

Appellant sought a continuance on account of the absence of several witnesses to sustain his plea of insanity. We deem it unnecessary to discuss this question, in view of a reversal of the judgment upon another question. The witnesses can or may be obtained upon another trial.

We also deem it unnecessary to discuss the sufficiency of the evidence to show the rape. It is fully doubtful, if not more than doubtful, that penetration was proved. There seems to have been no attempt to prove it outside of Dr. Collins’ testimony, who waited on the little girl, aided by the confession of appellant. It JLs not necessary we think to discuss this question ¿s a matter of fact, in view 'of what may be said later with reference to the confession. To say the least of it, Dr. Collins’ testimony is very unsatisfactory in regard to the question of penetration.

Appellant's confession as introduced substantially is that he would be 20 years of age his next birthday; that about 1:30 or '2 o’clock Saturday evening he was at the residence of R. J. Brown on Bagby Street in Waco; that two of Mr. Brown’s children were at home, a girl and a boy; that when he entered the house the little girl came to him and asked him to unbutton her drawers, that she wished to go to the water-closet. He complied with her request; she went away, and directly came back and requested him to button her drawers. He told her to wait a few minutes; that she got in his lap, and he, appellant, looked at her private parts, took out his, and held and rubbed it up and down on her private parts. He then says:

"Then I seen I couldn’t do nothing so I started to put it up.”

Just at this juncture Mrs. Couch came, and he did not have time to button his breeches. He was sitting in a chair and crossed his legs. He said:

“I intended to do it to her if it was big enough. When I looked at her 'pussy,’ I saw I could not get it in, so I spit- on my private member and rubbed it up and down. I was not there but about five minutes. Mrs. Brown is my aunt; the girl is my cousin; she is about 5 years old.”

The contention of appellant is that the court erred in not submitting in his charge to the jury the exculpatory statements, and that the burden was on the state to show that these exculpatory statements were not true. If what appellant says is the truth, the offense of rape was not committed. He excludes the idea of penetration. Having introduced it, the state was bound by it, unless it was disproved. It is useless to cite authorities upon this proposition.

Whatever the offense of appellant may be by this action and conduct, it does not constitute rape, because penetration is a necessary element. This case is very similar to that of Draper v. State, 57 S. W. 655. In that case the evidence was stronger as to penetration than in this case. The judgment there was reversed. Perhaps upon another trial the testimony may be strengthened. Dr. Collins’ testimony does not show penetration; but in any event the court was in error in not submitting the force and effect of the exculpatory statements.

There are other questions in .the case, which we deem unnecessary to discuss.

The judgment will be reversed, and the cause remanded. 
      <§S3»For other cases see same topic and KBY-NTJMBBR in all Key-Numbered Digests and Indexes
     