Ledbetter v. State , 33 Tex. Crim. 400 ( 1894 )

HURT, PRESIDING Judge.

Conviction for rape upon Mrs. Wo-mack, a married woman. The indictment alleged that the rape was effected by force, threats, and fraud. The State relied upon fraud alone, namely, that appellant used stratagem, by which he induced Mrs. Womack to believe that he was her husband. Penal Code, art. 531. If Mrs. Womack is worthy of credence, this fact was most clearly established. There is nothing in this record, save the testimony of appellant, who was a witness, impeaching her testimony.

The court erred in defining “penetration.” This may be conceded. There was no objection to this error, nor instructions requested concerning the same. Was it calculated to injure the appellant! Most evidently it was not, for Mrs. Womack not only swears positively to this effect, but appellant is equally as positive that he had carnal knowledge of her to the fullest extent.

The charge of the court does not require the jury to believe that appellant had carnal knowledge of the prosecutrix with her consent, and knowledge that he was not her husband, in order to acquit. Upon this subject the charge, based upon defendant’s evidence alone, is: “If you believe defendant obtained carnal knowledge of said Mrs. Wo-mack, she knowing at the time who he was, and consenting to such carnal knowledge, or if you have a reasonable doubt as to this, you should give him the benefit of such doubt, and acquit him, and say, by your verdict, ‘Not guilty.’” By this charge the jury were instructed to acquit if they believed from the evidence that Mrs. Wo-mack consented, knowing that it was appellant; to acquit if there was a reasonable doubt as to these facts.

The evidence amply supports the verdict in every particular. There is a direct conflict in the testimony of the prosecutrix and that of defendant. The jury settled the conflict against appellant, and we think correctly, when we look to other circumstances, which were very suspicious indeed.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.