
    PARKER v. STATE.
    (No. 8259.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Nov. 26, 1924.)
    I. Criminal law <&wkey;730( 1.4) — Prosecutor’s argument In rape case held not incurable by instruction to disregard.
    State’s attorney’s argument in rape case that, when prosecutrix’s father looked on her that night, “the scene was enough to stir in his bosom the very fires of hell,” and that defendant should be thankful that wrath of some other outraged father had not overtaken him before, and that prosecutrix’s father consented for law to take its course, held not violative of any constitutional or statutory provision, nor such as was not rendered harmless by instruction to disregard it.
    2„ Criminal law &wkey;720(7)— Prosecutor’s argument as to marks of violence on prosecutrix, when consistent with, prosecutrix’s testimony, held not improper.
    Prosecutor’s argument in rape case, re1 ferring to marks of violence on prosecutrix, and asking “Who, if not the defendant, did it?” when consistent with prosecutrix’s testimony, ■controverted by that of defendant, was not improper.
    3. Rape <&wkey;59(!5)— Court’s charge as to necessity of proof of penetration held sufficient.
    Court’s charge, fully informing jury that proof of penetration was essential to conviction, ‘held sufficient, without further definition of carnal knowledge.
    4. Criminal law &wkey;>829(4)— Rape &wkey;>59(!3, 20,21) — Instructions on defendant’s negative defense, assault with intent to rape and aggravated assault held not warranted.
    In rape prosecution, defendant held not entitled to instruction, on theory that he acted on well-grounded belief that his advances would not be objectionable, nor to submission of issues of assault with intent to rape or aggravated assault; inference from his testimony being that there was no assault, which was purely negative defense, fully covered by charge .given.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Alton Parker was convicted of rape, and appeals.
    Affirmed.
    Lon A. Brooks, of Anson, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Biorris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 10 years.

According to the state’s testimony, Daisy Corder, attended a party some 5 miles from her home, and there met the appellant. He became her escort in returning to her home. They rode together in ¿ Ford automobile. Appellant drove the car on the wrong road. The prosecutrix protested, and then jumped from the car. Appellant stopped, and she got back in the car, which the appellant started in the direction of her home. On the way he importuned her to extend him sexual favors. She declined, and he hit her on the head with his fist. She lost consciousness, and when she regained it, she was on a cushion which was oh the ground. Her clothes were up, and her drawers had been torn open. She began to fight, and made outcry. Appellant threatened to beat her. He persisted in his assault, and succeeded in penetration. Her apparel was produced in court, and, according to her testimony, the rents and blood upon them were due to the assault. After the episode she got into the car, and they rode part of the way together. They overtook certain parties on the road; the two Terrells, Oldham, and Mims. Appellant told the prosecutrix he wanted her to get into the car with Mack Mims. She ran, and the appellant pursued her. Appellant finally desisted, and she went to the home of one Williams, which was near by. Williams accompanied her to her father’s home. She had bruises on her limbs and upon her breast. Her arms were scratched, and there were finger prints upon her throat. The act of intercourse was accomplished without her consent.

According to the appellant, on the way home with the prosecutrix he drove on the wrong road about 10 steps. I-Ie drove out of the road, stopped his car, and asked her to have intercourse with him, to which she made no reply. He took the cushion in the car, and threw it on the ground. She got out and sat on it. He began to ask her if she was going to have intercourse with him, and she said, “No.” Appellant then told her that he would take her home, and would not go with her any more. She replied: “I’ll have you in two months, or I’ll kill you.” Appellant said: “You had just as well kill me, because we wouldn’t be married.” This was the second time he had been with her. He had had intercourse with her on the first occasion. This occurred on the back seat of the .car. On the occasion upon which the prosecution rests she told him, upon his insisting that she submit to his embraces, that she was not going to do it any more.

In his argument the state’s attorney said:

“When Bob Corder looked upon his daughter that night, the scene was enough to stir in his bosom the very fires of hell.”

Also:

“The defendant should be thankful that the wrath of some other outraged father has not overtaken him before now, and that Bob Corder consented for the law of this country to take its course.”

Objection to these remarks was sustained at the time, and the jury was instructed by the court to disregard them. The argument was violative of no provision of the Constitution or statute, and considered in the light of the record, it was not such as would prevent any harmful effect by their withdrawal. See Tucker v. State (Tex. Cr. App.) 257 S. W. 260; Branch’s Ann. Tex. P. C. § 362.

Bill of exceptions No. 7 complains of the remarks of counsel in which he said that the prosecutrix had been raped; that there were finger prints upon her throat; that her eyes were bloodshot; “Who, if not the defendant, did it?” The argument was consistent with the testimony of the prosecutrix, who described the assault and her condition, controverted by the testimony of the appellant. He left upon the jury the inference that his conduct was not such as to leave upon the prosecutrix any marks of violence. It was not incumbent upon the court to withdraw the argument which was not shown by the bill to have been an improper inference from the testimony in the record. The court, in its charge, fully informed the jury that proof of penetration of the sexual organ of the prosecutrix by that of the appellant was essential to conviction. A further definition of carnal knowledge is unnecessary.

In the exception to the main charge and in the special charges reguested, appellant sought to have the court instruct the jury in substance that, if they believed that by the present or past acts or conduct of the prosecutrix, the appellant was led to. believe that she would not object to carnal intercourse with the appellant on the occasion of the alleged offense, and that, acting upon this belief, appellant requested her to extend to him the carnal favors, and that, upon the denial of this reguest, the appellant made no effort to gratify his desire, he would not be guilty. It occurs to us that as applied to the offense, of which the appellant was charged, and which the state introduced evidence to support, the record presents no affirmative defense. The effect of appellant’s testimony is to controvert or negative the occurrence of the alleged act. Appellant’s rights seem to have been sufficiently conserved in the charge of the court, notably in subdivision 6, which is as follows:

“Before you can convict the defendant, you must believe from the evidence beyond a reasonable doubt that the defendant, on the night of May 5, 1923, in the county of Jones and state of Texas, on or near the road from the residence of Milton Harrell to the residence of R. B. Corder, did then and there make an assault in and upon the said Daisy Corder, and you must further believe from the evidence beyond a reasonable doubt that the said Daisy Corder was then a woman, and you must further believe from the evidence beyond a reasonable doubt that the defendant did then and there, by force, violently ravish and have carnal knowledge of the said Daisy Corder, without her consent and against her will, and you must further believe from the evidence beyond a reasonable doubt that such force, if any, must have been such as might reasonably be supposed to be sufficient to overcome all resistance within the power of Daisy Corder, takiiig into consideration the relative strength of the parties and other circumstances in the case, and you must further believe from the evidence beyond a reasonable doubt that at said time and place the sexual organ of Daisy Corder was penetrated by the sexual organ of the defendant, and unless the state has proved each and all of said matters beyond a reasonable doubt, you will acquit the defendant.”

If the appellant, acting upon the well-grounded belief, founded upon the previous relations of the parties, that his advances would not be objectionable, had made an assault falling short of the act of intercourse, he would have been within his rights in demanding that the court instruct the jury in accord with that theory, to the end that it might be taken into account in excusing the assault or reducing its grade. Such seems not to be the case, neither from the testimony of the prosecutrix nor that of the appellant. Nor is there perceived by this court any testimony that woqld bring into operation the principle of law under discussion. If the testimony of the state is believed, the assault was made, followed up by the ultimate consummation of the act of intercourse. If the appellant’s testimony is believed, there was no assault of any character. His utmost was to importune the pros-ecutrix to consent to his embraces. We are constrained to regard the charge given by the learned trial judge, to have so accurately submitted the issues in the ease arising from the evidence, and to have so carefully guarded the rights of the accused that this court would not be warranted, because of any omission in the charge, to overturn the verdict. Nor do we believe that there was error in declining to submit to the jury the issues of assault with intent to rape or of aggravated assault.

Finding no error requiring a reversal, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In view of appellant’s motion we have again examined his evidence, and are confirmed in our views that it raises no affirmative issue. The charge and the state’s case is one of rape by force. Appellant by his testimony does not even raise the issue of aggravated assault as a defense to the charge of rape. Whatever fondling may have been done by him, if any, was, according to his evidence, with the consent of prosecutrix, and this, if true, falls short of aggravated assault in this character of case. His defense was not affirmative, hut purely negative, and covered fully, we think, in the charge given. Under the facts of the present case we do not perceive the application of Owens v. State, 39 Tex. Cr. R. 391, 46 S. W. 240; Perez v. State, 48 Tex. Cr. R. 225, 87 S. W. 350; Tucker v. State, 94 Tex. Cr. R. 119, 249 S. W. 1063.

The motion for rehearing is overruled. 
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