
    PINKERTON v. STATE.
    (No. 7027.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1922.)
    1. Criminal law &wkey;>772(6) — Defendant, who presents affirmative evidence to show facts constituting defense, entitled to instruction to acquit if such facts exist.
    A defendant, who presents affirmative evidence tending to show a defense against the charge, is entitled to have the jury instructed that if the defensive facts existed' defendant should be acquitted; a mere implied or negative presentation of the defensive issues arising from such affirmative testimony being insufficient.
    
      2. Rape <&wkey;4 — Intercourse with defendant or other person before alleged offense good defense in prosecution for rape with consent of girl under 18.
    A defendant could not be convicted for rape by consent upon a girl under 18 years of age if before the time of the alleged offense the defendant or any other person had had intercourse with the prosecutrix.
    3.Rape <&wkey;59(8) — Instruction not sufficient to present defense that prosecutrix had had intercourse previous to the time of the alleged offense.
    In a prosecution for rape with consent on female under 18 years of age, instruction that defendant should be acquitted if the jury had a reasonable doubt as to whether the prosecu-trix “was at the time of the alleged offense of previous chaste character, that is, had not had carnal knowledge of defendant, or any other man,” held insufficient to present defense that the defendant or other men had had intercourse with the prosecutrix prior to the time of the alleged offense.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Joe Pinkerton was convicted of rape, and he appeals.
    Reversed and remanded.
    J. A. Johnson, of Stephenville, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for rape by consent upon a girl under 18 years of age; punishment fixed at confinement in the penitentiary for a period of 25 years.

The indictment was filed on the 9th day of December, 1921. The offense is charged to have occurred on the 15th day of June, 1921.

The prosecutrix testified to facts showing the commission of the offense upon that date; that at the time she was over 15 years of age. There was specific testimony introduced on the part of the appellant to the. effect that prior to the time the offense was charged to have been committed the appellant had had with the prosecutrix other acts of sexual intercourse. There was also testimony introduced to the effect that prior to the date of. the offense other parties had done likewise.

The court gave this instruction in his main charge:

“If you therefore believe from the evidence in this case beyond a reasonable doubt that the defendant, Joe Pinkerton, in Erath county, Tex., and on or about the 15th day of June, 1921, did have carnal knowledge of Ahniwa Wood, a female then and there under the age of 18 years, and did penetrate her female organ with his male organ, and, further, that the said Ahniwa Wood was then and there not the wife of the defendant, and that she was of previous chaste character at said time, then you will find the defendant guilty as charged in the indictment, and assess his punishment at death or confinement in the penitentiary for life, or for any'term of years not less than 5 in your discretion.
“If you do not so'find and believe from the evidence beyond a reasonable doubt, you will acquit the defendant, or if the evidence raises in your mind a reasonable doubt as to whether or not the prosecuting witness, Ahniwa Wood, was at the time of the alleged offense of previous chaste character, that is, had not had carnal knowledge of defendant, or any other man, then the defendant would n,ot be guilty, and you will so find.” ■

The appellant requested a special charge reading thus:

“You are charged that, even though you may find and believe from the evidence that the defendant, Joe Pinkerton, did have carnal knowledge of Ahniwa Wood on or about the date alleged in the indictment, still you cannot convict him, if you further find and believe from the evidence that the defendant himself, or any other person, prior to said time, had carnal knowledge of the said Ahniwa Wood, or if you have a reasonable doubt thereof, then it would be your duty to acquit the defendant and say by your verdict not guilty.”

The rule is well settled that, where the accused on trial presents affirmative evidence going to show the existence of facts which would constitute a defense against the charge, it is his right to have the jury instructed that, if these defensive facts existed, an acquittal should result. The early cases affirmed this rule, and in a proper case its application has been uniformly demanded. Greta v. State, 9 Tex. App. 429; White v. State, 18 Tex. App. 57; Duncan v. State, 90 Tex. Cr. R. 479, 236 S. W. 468; Rose’s Notes on Texas Rep. vol. 5, p. 447. This demand is not satisfied merely by an implied or negative presentation of the defensive issues arising from affirmative testimony. Irvine v. State, 20 Tex. App. 12; Herron v. State, 20 Tex. App. 301; Smith v. State, 24 Tex. App. 299, 6 S. W. 40; Hopkins v. State (Tex. Cr. App.) 53 S. W. 622; Bonner v. State, 29 Tex. App. 232, 15 S. W. 821; Garza v. State, 38 Tex. Cr. R. 317, 42 S. W. 563.

The eighth paragraph of the court’s charge is in part but an instruction of the converse of the proposition submitted in paragraph 7. The part of it which is relied upon by the state to embrace the defensive issues raised by the affirmative testimony in a manner justifying the refusal of the special charge which the appellant requested, we think, may not be unjustly characterized as a negative presentation of the issues, as contradistinguished from an affirmative presentation of them. The law is definite that, if before the time of the alleged offense was committed the appellant had intercourse with the alleged injured female, or any other person had sexual intercourse with her, the prosecution must fall. The special charge which the appellant presented and which was refused was couched in terms informing the jury of this phase of the law in language which required no analysis or construction, but was perfectly plain even to an untrained mind. It was definite and affirmative; it was clearly applicable to the evidence introduced, and the court was not warranted in refusing to read it to the jury, unless it be because the same information was imparted to the jury in the eighth paragraph of the charge, supra. While the eighth paragraph, analyzed by a trained mind, may convey the same idea as that embraced in the special charge, it cannot be justly said that it is by any means so clear as the special charge. We confess that the sufficiency of this charge is not altogether free from doubt. There is, however, no question in your mind but the special charge was proper and much better adapted to serve the purpose intended than the eighth paragraph of the main charge. The only defensive theory presented on the trial was that embraced in the special charge requested. In view of the grave nature of the case, the heavy penalty imposed, and the evidence relied upon to meet the defensive theories, we feel constrained to resolve the doubt which we have expressed above in favor of the accused.

Because of the refusal of the special charge which we have quoted, the judgment is reversed, and the cause remanded. 
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