Edworthy v. State , 1963 Tex. Crim. App. LEXIS 987 ( 1963 )

BELCHER, Commissioner.

The conviction is for rape; the punishment, fifteen years.

The indictment alleged that appellant made an assault upon the prosecutrix who was under eighteen years of age, and did ravish and have carnal knowledge of her, she not being his wife.

To this indictment the appellant entered a plea of guilty, and after being duly admonished as to the consequences of the same his plea of guilty was by the court accepted.

In pursuance of the requirements of the statute where an accused pleads guilty to a felony upon a trial before a jury, the state introduced evidence for the purpose of enabling the jury to intelligently assess the proper punishment. Art. 502, Vernon’s Ann.C.C.P.; Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83.

The testimony of the prosecutrix, age fifteen at the time of the commission of the offense charged, and also the written statement of the appellant pertaining to the offense were introduced in evidence before the jury by the state.

The appellant did not testify or offer any evidence.

In accordance with the court’s instruction the jury found the appellant guilty as charged in the indictment and assessed his punishment.

Appellant contends that the evidence showed or raised a defense in that the prose-cutrix was of previous unchaste character at the time of the commission of the act relied on for a conviction in that the state introduced in evidence his written statement in which he admitted having a prior act of sexual intercourse with her which constitutes a defense to the offense charged. Therefore, he argues that at the conclusion of the introduction of evidence, it became the duty of the trial court to withdraw appellant’s plea of guilty and enter for him a plea of not guilty. In failing to do so, the appellant insists that the trial court committed reversible error.

The previous unchaste character of a prosecutrix over fifteen years of age and under eighteen years of age does not constitute a defense to the offense of rape by force.

In considering the effect of the use of the word “ravish” in an indictment in connection with the allegation of carnal knowledge of the prosecutrix, which is the same pleading used in charging the offense in the instant case, this court in Rodrigues v. State, 166 Tex.Cr.R. 1, 308 S.W.2d 39, said:

“The word ‘ravish’ implies force and want of consent, and its use in the indictment in connection with the allegation of rape of a female between the ages of 15 and 18 years, as here, ren•ders the indictment sufficient to support a conviction for rape by force as well as for statutory rape. Dyer v. State, Tex.Cr.App., 283 S.W. 820; Patton v. State, 105 Tex.Cr.R. 128, 287 S.W. 51; France v. State, 148 Tex.Cr.R. 341, 187 S.W.2d 80.

“The word 'ravish’ is not, however, •descriptive of the offense and it is therefore not necessary that force be proven in order to sustain a conviction -under such indictment. Id.

“The use of the word ‘ravish’ by no means precluded a conviction for statutory rape, under the indictment. A conviction could be had thereunder for either rape by force or for statutory rape. Dyer v. State, supra.”

The plea of guilty by the appellant to the indictment containing allegations authorizing a conviction of rape by force sustains the conviction on the plea of guilty.

The judgment is affirmed

Opinion approved by the Court.