
    FRANKLIN v. STATE.
    (No. 11768.)
    Court of Criminal Appeals of Texas.
    May 9, 1928.
    1. Rape <§=322 — State, in prosecution for rape of mentally diseased female, must allege and prove that such female was not wife of defendant (Pen. Code 1925, art. 1183).
    Tinder Pen. Code 1925, art. 1183, defining rape, state, in prosecution 'for rape of female so mentally diseased as to have no will to oppose act, has burden of alleging and proving that mentally diseased injured female was not the wife of defendant, as constituting an essential element of crime.
    2. Criminal law <§=31032 (5) — Failure of indictment for assault with intent to rape to allege female was not wife of defendant may be first raised on appeal (Pen. Code 1925, art. 1183).
    Defect in indictment for assault with intent to rape mentally diseased female for failure to charge that such female was not the wife of defendant constituted a defect of substance as failure to charge offense defined by Pen. Code 1925, art. 1183, and may be raised for the first time on appeal.
    3. Rape <S=>53(2) — Evidence held insufficient to sustain conviction for assault with intent to rape (Pen. Code 1925, art. 1184).
    In prosecution for assault with intent to rape, evidence as to force used within meaning of Pen. Code 1925, art. 1184, held insufficient to sustain conviction.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    Jim Franklin was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    See, also, 106 Tex. Cr. R. 285, 292 S. W. 222.
    J. R. Stubblefield, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., "of Austin, for the State.
   MARTIN, J.

Offense, assault with intent to rape; penalty, two years in the penitentiary.

The record presents a perplexing and rather unique situation. The indictment is in three counts. ' The first count sufficiently charges a rape upon a woman, other than the wife of appellant, so mpntally diseased at the time as to have no will to oppose the act of carnal knowledge. The second count sufficiently charges an assault to rape upon a mentally diseased woman, other than the wife of appellant, and the third count, upon which the conviction was had, is sufficient in our opinion to charge the offense of assault with intent to rape, but it omits entirely the allegation that the woman was not the wife of the accused. Such an allegation is present in the other two counts, but absent in the third count. Upon a former trial the jury convicted upon the third count, andi upon the last trial only the third count was submitted to the jury.

Article 1183, P. 0. (1925) defines rape as follows:

“Rape is the carnal knowledge of a woman without her consent obtained by force, threats or fraud; or the carnal knowledge of a woman other than the wife of the person having such carnal knowledge with or without consent and with or without the' use of force, threats or fraud, such woman being so mentally diseased at the time as to have no will to oppose the act of carnal knowledge, the person having camal knowledge of her knowing her to be so mentally diseased; or the carnal knowledge of a female under the age of eighteen years other than the wife of the person with or without her consent and with or without the use of force, threats or fraud; provided that if she is fifteen years of age or over the defendant may show in consent cases she was not of previous chaste character ás a defense.”

It will be noted that an essential element of the definition of the rape of a female so mentally diseased as to have no will to oppose the act of carnal knowledge is that she be “a woman other than the wife of the person having such Carnal knowledge.” This being part of the offense defined and denounced by statute,, it was indispensably necessary for the state to allege and prove that the mentally diseased injured female was not the wife of appellant. Edwards v. State, 37 Tex. Cr. R. 242, 38 S. W. 996, 39 S. W. 368. Por a full collation of authorities see Branch’s P. C. p. 991. See, also, Caidenas v. State (Tex. Cr. App.) 40 S. W. 980; Belcher v. State, 39 Tex. Cr. R. 123, 44 S. W. 1106. No question as to the sufficiency of the indictment was raised in the trial court, tout this defect in the indictment is one of substance, in that it fails to charge the offense -defined by the statute, and may be raised for the first time on appeal. Gonzales v. State, 58 Tex. Cr. R. 141, 124 S. W. 937; Pospishel v. State, 95 Tex. Cr. R. 626, 255 S. W. 738.

The evidence seems amply sufficient to support a conviction for an assault with intent to rape a mentally diseased female, but, there being no such offense charged in the third count of the indictment, the case will have to be reversed, unless a conviction could be sustained upon the theory that the allegations and proof are sufficient to make out a case of ordinary assault with intent to rape. We regard -the third count as sufficient to -charge an assault with intent to rape a female not mentally diseased, but is the evidence sufficient to sustain such charge? The quantum of proof in such case is necessarily different. Article 1184, P. C., is as follows: •

“The definition of ‘force’ as applicable to assault and battery applies also to rape, and it must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the ease.”

A rule in rape cases laid down by Mr. Branch is as follows:

“Threats apart, every exertion in the p.ower of the woman, under the circumstances, must be made to prevent the penetration of her person, or consent will be presumed.” Branch’s P. C., p. 998.

See, also, Mooney v. State, 29 Tex. App. 257, 15 S. W. 724, and recent case of White v. State (Tex. Cr. App.) 4 S. W. (2d) 37.

The trial court seems to have recognized the defect in the indictment and charged the jury that “the assault as above defined must have been accompanied with the specific intent to rape; * * .* to have carnal knowledge of the woman without her consent, and by the use of such means as is sufficient to- overcome all resistance within her power and to accomplish his purpose at all hazards'.” The allegations of the third count of the indictment, the charge of the court, and the evidence indicate the rather singular and unusual situation of a trial of appellant upon the theory that he was guilty of the two kinds of assault to rape above mentioned.

Treating this offense as an ordinary assault with intent to rape case, as we are forced to do because of the insufficiency of the allegation in the indictment to support any other offense, and measuring the sufficiency of the evidence by the atoo-ve rules, we are forced to conclude that same is insufficient to support a conviction. It rests almost entirely upon the testimony of a sister of the injured party, who testified she opened the door of their ho-me suddenly, and found the appellant on top of the injured 'female. She stated: “When I entered the bedroom, I could not tell where Jim Franklin had his hands, whether he had hold of Frances’ person or not, but he was lying on top of her.” There is an entire absence of testimony showing any resistance by the injured female or any force used by the appellant.

Since we are not permitted to legislate and make law, nor to correct the mistakes made by the agencies of the law of the character here shown, and following our duty to interpret and follow the law as it is written, we are left no alternative except to reverse and remand this ease because of the insufficiency of the evidence, and it is accordingly so ordered.

PEE CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      @=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     