Lopez v. State

268 S.W. 748, 99 Tex. Crim. 194, 1925 Tex. Crim. App. LEXIS 95

Opinions

HAWKINS, Judge.

Appeal is from a conviction for rape upon one Ella Dicke, who was alleged to be under the age of consent. Penalty eight years in the penitentiary.

No error was committed in refusing the requested charge to the effect that prosecutrix was unchaste since her first act of intercourse with appellant, or with any other man. It contained a correct proposition of law, but the learned trial judge had obviated any necessity for such instruction by the wording of his general charge. Under the undisputed evidence prosecutrix was an unchaste female, and the state was entitled to no conviction unless it established an act of intercourse between her and appellant before her fifteenth birthday. The court so instructed the jury, and also told them she had become unchaste long prior to that date.

Appellant makes no contention that the evidence is insufficient save that he avers it fails to show prosecutrix was not appellant’s wife between July 1st and 16th, 1923, this being the time relied on by the State as the date of the offense. Prosecutrix testified that she was not married to appellant, but that he was the father of one child born to her when she was fourteen years old, and was at the time of trial again pregnant by him. We deem it unnecessary to set out the evidence further, but regard it as clearly showing that prosecutrix had never been married to appellant. He did not testify himself and offered no defensive evidence.

The judgment is affirmed.

Affirmed.