
    MOORE v. STATE.
    (No. 6550.)
    (Court of Criminal Appeals of Texas.
    Dec. 14, 1921.
    Rehearing Denied Jan. 25, 1922.)
    1. Rape (§=352(1) — Evidence held to warrant jury in rejecting defendant’s story.
    In a prosecution for rape upon a girl under 18, eviderice that defendant had attempted to induce other witnesses to testify that the girl’s stepfather, or the witness, was responsible for her condition, held to'warrant the jury in rejecting the defendant’s story that the stepfather and the prosecutrix had been seen copulating.
    2. Criminal law ¡§=5829(3) — Requested charge already covered need not be given.
    A requested charge to find the defendant not guilty, if the jury found the prosecutrix was over 15 years of age and was of previous unchaste character, was properly refused where that issue was presented to the jury in a paragraph of the court’s charge.
    3. Rape ¡§=349(2) — Doctrine of prompt outcry inapplicable to statutory rape.
    The doctrine of prompt outcry and report does not apply to a charge of rape with consent on a girl under the age of 18.
    On Motion for Rehearing.
    4. Indictment and information ¡@=>11 f (3) — Exception not part of description of offense need not bte negatived.
    An indictment charging a statutory offense need not negative an exception or proviso in the statute which is separable from the description of the offense and not an ingredient thereof.
    5. Indictment and information ¡§=3l 11 (3) — Indictment for statutory rape need not negative previous unchastity of girl under 15.
    The proviso to Penal Code, art. 1063, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 50, that if the woman is 15 years of age, or over, the defendant might show that she was not of previous chaste character as a defense, makes the previous chastity of the prosecutrix not an element of the offense, but a matter of defense, so that the indictment need not negative her unchastity.
    Appeal from District Court, Payette County; M. C. Jeffrey, Judge.
    Earl Moore was convicted of rape, and be appeals.
    Affirmed.
    George E. Lenert and John T. Duncan, both of La Grange, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for rape upon a female under 18 years of age; penalty 5 years in penitentiary.

Irene Brown, the prosecutrix, is a negro girl who was attending school in her neighborhood. Appellant, a colored youth about 19 years of age, lived in the same community, and was acquainted with prosecutrix, though the evidence shows he had never been out with her to any parties or entertainments. No toilet had been provided for the convenience of the scliool children, but they were accustomed to retire to the woods back of the schoolhouse when necessary to attend calls of nature. Prosecutrix claims that on the 8th day of November, 1920, during the noon recess, while out in the woods to relieve herself, she met appellant, and the act of intercourse took place upon which this prosecution is based. Appellant was not going to school and this meeting, she claims, was not by previous appointment, but accidental, and was the only act of intercourse between them. She developed pregnancy, and attributes her condition to appellant. ' Accused vigorously denied his presence at the time and place fixed by the girl, and attributes her condition to her stepfather, and supported the theory by a rather remarkable story told by his mother and one of her kinsmen of seeing the girl and her stepfather copulating in plain view of the road, although there appeared to be near a weed patch in which they might have hidden. The jury rejected this theory.

Outside of the right of the jury to credit or discredit the testimony of any witness, two reasons are disclosed by the record why the jury may not have looked with favor on this story. Two witnesses were produced by the state who testified that appellant had offered them inducements to swear that they had seen prosecutrix and her stepfather copulating, which they declined to do, denying that they had ever witnessed such conduct. Accused also wanted one of these witnesses to swear that he himself had indulged in sexual relations with 'the girl, which also the witness respectfully declined to do. Another reason, the stepfather was shown to have been married three times to healthy women. He lived with the first wife four years, with the second three years, and had been living with his third wife, the mother of prosecutrix, five years. No children were born of any of these marriages. In the course of nature the jury were authorized to presume that such results might have followed, and may have concluded it was passing strange that no children had come to bless his legal unions, but had unfortunately overtaken his stepdaughter as a result of his alleged illicit relations with her.

Omitting formal parts, the indictment alleged that appellant had carnal knowledge of Irene Brown, a female under 18 years of age and not appellant’s wife. Motions to quash and in arrest of judgment were made, claiming that, if Irene Brown was over 15 years of age and under 18, the indictment should have alleged that she was of previous chaste character. Previous un-chastity is made a defense between 15 and 18, but it is not necessary for the state to allege previous chastity. That is presumed until the defense makes the issue.

Complaint is made because the court refused to give the following special charge:

“Now, if the evidence shows or tends to show that Irene Brown was over the age of 15 years when this alleged carnal intercourse took place, or if you have in your minds a reasonable doubt as to whether she was over the age of 15 years and was of previous unchaste character, then you will find the defendant not guilty and so say by your verdict.”

We find this issue was presented to the jury in the third paragraph of the court’s charge, and a repetition thereof was unnecessary and would have been improper.

The court was requested to charge the jury that, if prosecutrix was over 15 years of age, and of previous unchaste character, and never made any outcry concerning the commission of the offense, and no complaint for several months, and no disclosure concerning the same until her pregnancy made it obvious, the evidence would be insufficient to convict. We can see no necessity of giving such charge. If prosecutrix was of previous unchaste character, was over 15 years of age, and consented to an act of intercourse, it would be an absolute defense, regardless of whether she disclosed it immediately after the act was completed. The jury were, told it was a defense. The doctrine of prompt outcry and report does not apply to rape with consent in “under age” cases as it does to rape by force.

The court gave a charge on alibi which protected appellant in this defensive theory, and it was not required of the court to submit the same issue in other terms.

Binding no errors in the re'cord, the judgment of the trial court is affirmed.

On Motion for Rebearing.

MORROW, P. X

It is again insisted that the indictment was bad, in that it failed to state that the prosecutrix was of previous chaste character. The statute is found in the Acts of the. Thirty-Fifth Legislature, Fourth-Called Session, c. 50. The caption reads thus:

“An act to amend article 1063, title 15, chapter 8, of the Revised Penal Code of the State of Texas 1911, defining rape and declaring an emergency.”

As applied to the phase of rape upon which this prosecution depends, it is defined as: !

“Carnal knowledge of a female under the age of eighteen years, other than the wife of the person, with or without her consent, and with or without the use of force, threats or fraud.”

The section concludes with these words:

“Provided, that if the woman is fifteen years of age or over, the defendant may show in consent cases, she was not of previous chaste character as a defense.”

We have heretofore construed this statute as evidencing the intent of the Legislature to advance the age of consent to carnal knowledge to 18 years and to declare that the one accused of the offense might justify his act of carnal knowledge with the consent of the prosecutrix over 15 years of age by showing that she was of previous unchaste character. Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 992.

We have also expressed the opinion that the proviso mentioned was not descriptive of the offense, so as to require that the indictment should contain an averment of the previous chastity of the female. Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163. In reaffirming this view in the instant case, we are- constrained to think we' were not in error.

The necessity for negativing exceptions is a subject upon which there have been many judicial expressions. From the text in Cyc. vol. 22, p. 344, the purport of them is thus stated:

“It is necessary to negative an exception or proviso contained in a statute defining an offense where it forms a portion of the description of the offense, so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted. Where, however, the exception or proviso is separable from the description and is not an ingredient thereof, it need not be noticed in the accusation, being a matter of defense. As the rule is frequently stated, an exception in the enacting clause must be pleaded; but an exception in a subsequent clause or statute is matter of defense to be shown by the accused.”

A review of the various decisions of this court upon the subject we deem unnecessary; in fact, the number of them precludes it. They are listed in Branch’s Ann. Texas Penal Code, § 510. The general rule is thus stated by Mr. Bishop in his New Crim. Proe. vol. 2, p. 491, § 631:

“The doctrine is that the indictment on a statute, like any other, must show a prima facie case, and it need not do more. So that, if the statute has exceptions, provisos, and the like, those which are affirmative elements in the ■ offense must be negatived in averment, while those in the nature of defense may be disregarded. Such is the principle; in its application, much depends on the location of the several clauses or provisions in the statute.”

Applying this rule in the light of our own decisions, as we understand it, the matter of chastity is not an affirmative element of the offense, but the unchastity is a fact available to the accused as a defense. Among the Texas cases illustrating this view, we refer to Mosely v. State, 18 Tex. App. 311, which refers to the provisos in the Sunday law. See Acts of the Eighteenth Legislature, p. 66; Newman v. State, 58 Tex. Cr. R. 226, 124 S. W. 956, referring to the medical practice act; Walker v. State, 68 Tex. Cr. It. 315. 151 S. W. 318, referring to the gift of intoxicating liquor during an election; Slack v. State, 61 Tex. Cr. R. 373, 136 S. W. 1073, Ann. Cas. 1913B, 112, referring to the sale of intoxicating liquors; Lewis v. State, 7 Tex. App. 567, referring to the unlawful possession of arms.

The motion for rehearing is overruled. 
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