
    BOOKER v. STATE.
    No. 13474.
    Court of Criminal Appeals of Texas.
    May 14, 1930.
    Ben L. King and Thos. C. Ferguson, both of Burnet, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for rape, punishment being twenty-five years in the penitentiary.

Appellant was charged with rape upon Julia Booker, alleged to be under 18 years of age. She was appellant’s own daughter. The undisputed evidence shows that appellant began to have intercourse with Julia early in the year 1928, at which time she was a little over 16 years of age. This relation continued uninterruptedly and with disgusting frequency up to the time this prosecution was instituted. The evidence shows without dispute an act of intercourse on September 25, 1929. The state elected to prosecute for this act.

Timely written objection to the court’s charge was presented because the jury was not instructed, if Julia was more than 15 years of age on September 25, 1929, and was of xjrevious unchaste character, they must acquit. A special charge supplying the omission was also requested and refused. After the state had elected to stand on the transaction of September 25th, the. court was also requested to direct a verdict of acquittal, which was likewise refused.

Article 1183, P. C., provides that, if prosecutrix is over 15 years of age, it may be shown as a defense in rape consent cases that prosecutrix was of previous unchaste character. If she was unchaste at the time of the act relied on by the state, it is a complete defense. Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 991; Connell v. State, 96 Tex. Cr. R. 475, 258 S. W. 167; Bayless v. State, 97 Tex. Cr. R. 87, 260 S. W. 587; Lyons v. State, 94 Tex. Cr. R. 566, 252 S. W. 518. Previous intercourse with appellant rendered prosecutrix unchaste. Cloniger v. State, 91 Tex. Cr. R. 143, 237 S. W. 288; Pinkerton v. State, 92 Tex. Cr. R. 449, 244 S. W. 606. In the present case appellant offered no evidence whatever. The state’s evidence furnished appellant a complete defense against the act of September 25, 1929.

The Legislature’s attention was directed to the law in Cloniger’s Case, supra, decided in 1922, to the end that it might consider whether an amendment was desirable. No change has been made in the statute.

We are compelled to reverse the judgment and remand the case, and it is so ordered.  