
    LYONS v. STATE.
    (No. 7714.)
    (Court of Criminal Appeals of Texas.
    June 6, 1923.)
    1. Rape <®=»35(4)— Submission of issue of rape by force held error, where not charged.
    Where indictment did not allege the tape was by force, it was error to submit issue of carnal knowledge by force.
    2. Rape <S=»4 — Proof of prior carnal knowledge of prosecutrix with another held fatal to conviction.
    Under the statute denouncing rape on a female under the age of 18 and over the age of 15, in a prosecution for rape not alleging force, threats, or fraud, conviction could not be sustained where prosecutrix admitted that prior to the acts complained of she repeatedly had. had intercourse with another; such testimony establishing that she was not of previous chaste character, as required by the statute.
    Appeal from District Court, Galveston County; J. O. Canty, Judge.
    Lee Lyons was convicted of rape, and appeals.
    Reversed and remanded.
    Frank S. Anderson, of Galveston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Galveston county of rape, and his punishment fixed at confinement in the penitentiary for life.

Appellant is a negro; prosecutrix, a white girl. The indictment contained but one count, which was for statutory rape;' it being alleged that prosecutrix was under 18 years of age and not the wife of appellant. There was no allegation of rape by force, threats, or fraud. It not being alleged that the rape was by force, it was error for the learned trial judge t'o submit to the jury in 'his charge that appellant might be adjudged guilty if the carnal knowledge was obtained by force.

The testimony is short. The prosecutrix testified that about the middle of July, 1921, she went to the house occupied by appellant, and.situated in the rear of the house where she lived, and that he had intercourse with her, and that he accomplished this by telling her that, if she did not submit to him, he would tell that he had seen her and one Louis Viana engaged in the same act. She further testified that, following this act, she had repeated acts of intercourse with appellant. It was further shown that a child was born to her in May, 1922, and a physician testified that in his opinion this child was a negro. Prosecutrix further admitted that, prior to the time she had any sexual knowledge of appellant, said Louis Yiana had copulated with her a number of times.

The Legislature makes the law. Under our present rape statute, as it hás been construed by this court in the cases of Norman v. State, 89 Tex. Cr. R. 830, 230 S. W. 991, and Cloninger v. State, 91 Tex. Cr. R. 143, 237 S. W. 288, proof of carnal knowledge before that with appellant would be a complete defense. It being thus established without controversy that, prior to the time of her intercourse with appellant, prosecutrix had been carnally known by another man, she was not' of previous chaste character, as that expression is used in our present statute denouncing rape upon a female under the age of 18 and over the age of 15 and appellant could not be guilty of that character of rape charged 'against him in the indictment herein. He was not charged "with rape by force, as stated above, but with rape of a female under the age of 18, she not being his wife.

The state’s own witnesses having plainly and unequivocally testified to facts which destroyed the case attempted to be made, this court is without' power to do other than direct that the judgment be reversed, and the cause remanded; and it is so ordered. 
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