Smart v. State

Appellant complains relative to the insufficiency of the testimony to sustain a conviction. The testimony as it appears in the record, is fairly and fully set forth in the original opinion. There was evidence offered by appellant that the reason of his nocturnal visit to the home of the prosecutrix was because of the fact that he had heard that a certain Mexican girl, who had previously granted him sexual favors, had been in town and was inquiring for appellant, and he thought she might be found in such house of the prosecutrix. He offered proof of such, and by such proof showed that some two or three months previous to his entry in prosecutrix's home such girl had inquired about him from a friend. Evidently the jury thought the period of time elapsing between the inquiry and the search for the girl was too long to have furnished any grounds to believe she was still waiting for her laggard lover in prosecutrix's two room home.

The father of appellant offered testimony of carnal acts upon the part of prosecutrix with another, he claiming to have known her in New Mexico in 1917, and that he saw her in one carnal act with a certain person in about the year 1937. Possibly this was offered to show that it would not have been necessary to have utilized force in order to have an act of carnal intercourse with the prosecuting witness, she being promiscuous in awarding such favors.

In Branch's P. C., p. 998, he says:

"It is no defense to a rape by force that the woman was not a chaste female. Wilson v. State, 17 Texas Crim. App. 525; Wragg v. State, 145 S.W. 342."

It is also said in 32 Texas Digest, under the title "Rape," Key No. 40 (3):

"The character of the prosecutrix for chastity is a proper subject of inquiry as bearing on the probability of her consent to defendant's act; and such character may be shown by evidence of her general reputation in that respect, or of her previous intercourse with defendant, but not by proof of particular acts of unchastity with third persons," citing Dorsey v. State, 1 Tex. App. 33[1 Tex. Crim. 33]; Rogers v. State, 1 Tex. App. 187[1 Tex. Crim. 187].

This rule was also early stated in 3 Greenleaf on Evidence, Sec. 214.

This court has also held that an inmate of a house of prostitution could be the subject of a rape by force, under the doctrine that her body was her own and she had the right to say who should be the recipient of her sexual favors. See Taff v. State, 155 S.W. 214, 69 Tex.Crim. R.. Generally, relative to the proof of specific acts and conduct with others than the defendant, see Satterwhite v. State, 113 Tex.Crim. R.,23 S.W.2d 356.

We think the trial court fully and fairly charged the jury relative to appellant's defense, with an admonition that if the jury had a reasonable doubt thereof, then they should acquit him. His defense failed to raise such doubt in their minds, and we think they were well within their province when they refused to believe his testimony.

The motion is overruled.