
    NeSMITH v. STATE.
    (No. 7292.)
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1923.)
    Criminal law <&wkey;8l4(8, 9) — instruction on force not applicable, where submission was for statutory rape.
    Where one count charged defendant with carnal knowledge of a female under the age of 18 years, and another count not submitted charged force, and the female testified she did not consent and evidence was definite that prosecutrix, was under 18 at the time of the offense, and that defendant had carnal knowledge of her, there was no error in refusing to instruct that, to convict, it was essential to find force or threats.
    Appeal from District Court, Mills County; M. B. Blair, Judge.
    Sol NeSmith was convicted of rap¾ and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

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

Two counts were embraced in the indictment. One charged 4he carnal knowledge of Vergie Pyburn, a female, then and there under the age of 18 years, and then and there not being the wife of the said Sol NeSmith; the other charged that the carnal knowledge was obtained by force, threats, and fraud, and without the consent of the said Vergie Pyburn. The second count was not presented to the jury, and the conviction rests upon the first count'alone. •

A single question is raised on the appeal, namely, the propriety of refusing to instruct the jury that, as a predicate for conviction,’ it was essential to find that the carnal knowledge was by force or threats. The evidence from the standpoint-of the state was definite that the prosecutrix, at the. time of the offense, was under 18 years of age, and that the appellant did, in fact, have carnal knowledge of her. She testified that it was without her consent. However, from her testimony, the inference is deductible that she did consent. The position taken by the appellant in his testimony was that there were no improper relations between them. This issue of fact was submitted to the jury in a manner of which no complaint is made. We perceive no error in refusing to give the charge requested. Under the state’s testimony, the appellant was guilty of rape, although he used no force or threats. See Parks v. State (Tex. Cr. App.) 241 S. W. 1017: Morgan v. State (Tex. Cr. App.) 50 S. W. 718; Jenkins v. State, 34 Tex. Cr. R. 201, 29 S. W. 1078. Under his testimony, appellant was guilty of no offense.

Discerning ho error, ah affirmance of the judgment is ordered. 
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