
    Calvin Otis Graves v. State
    No. 27,345.
    January 19, 1955
    
      C. S. Farmer' and Maddin & Copeland, by David C. Copeland, Waco, for appellant.
    
      Dan Walton, District Attorney, Eugene Brady, Assistant District Attorney, and Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

The indictment returned against appellant charged that he made an assault upon and did ravish and have carnal knowledge of a named female under 18 years of age, who was not his wife. Trial resulted in a verdict of guilty, the jury assessing a punishment of five years in the penitentiary. Appellant’s application for suspended sentence was not granted.

The evidence is insufficient to sustain conviction for statutory rape for the reason that the prosecutrix was admittedly of unchaste character.

The trial court, in his charge, authorized a conviction upon a finding by the jury that appellant ravished and obtained carnal knowledge of the prosecutrix by threats such as might reasonably create a just fear of death or great bodily harm in view of the relative condition of the parties as to health, strength and other circumstances of the case. No objections were made to the charge.

The question for our determination is therefore whether or not proof of rape by threats will sustain a conviction under indictment which charges only that the accused assaulted, ravished and had carnal knowledge of the named female under 18 years of age, who was not his wife.

Stated in another way, are the allegations of the indictment sufficient to include rape by threats as well as by force?

The state confesses that such manner of commission of the offense of rape is not included in the allegations of the indictment, and that the case should not have been submitted to the jury on the theory of rape by threats. We are inclined to agree.

The judgment is reversed and the cause remandel.  