Mosley v. State , 172 Tex. Crim. 12 ( 1961 )

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant strenuously takes issue with that portion of our original opinion in which we held that the question of the refusal of the requested charge, as to the prosecutrix being an accomplice was not before this court for review. We have re-examined the record and the authorities relied upon and have concluded that this case comes within the rule announced in Press v. State, 168 Texas Cr. Rep. 1, 322 S.W. 2d 525, and that the question of her being an accomplice was not raised by the evidence. Even if we were to assume that the prosecutrix willingly participated in the act of intercourse, it does not follow by any means that she became an accomplice to the act of oral sodomy which followed.

Since the evidence does not raise the issue, the court did not err in declining to submit the same.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.