Coots v. State (7 S.W.2d 539, 1928)

MARTIN, J.

The indictment in the first count charges the offense of rape by force and in the second count of rape of a female under the age of 18 years. Only the second count was submitted to the jury, who found appellant guilty and assessed his punishment at 8 years’ confinement in the penitentiary.

Appellant and his companion, John Alexander, according to the testimony of prosecu-trix, took her from a Fourth of July celebration in the town of Belton to the country against her consent. She testified that she met appellant, and that Alexander was to bring a car and honk three times for them, and that he did give the prearranged signal, and that she and Coots and Christine Tur-land went to this ear, and that she told Christine Turland to tell her brothers and sisters where she was and to come and get her. Christine Turland testified that no such thing occurred, but that prosecutrix laughingly told her to tell her brothers and sisters that she was with Miss Oleta Thompson. She testified that, arriving in the country with appellant and Alexander, she “believed” that John Alexander had intercourse with her; that a few minutes afterwards appellant had intercourse with her.

Prosecutrix lacked about four months of being 18 years of age at the time of the alleged commission of the offense. Appellant was a year or two older.

Without reciting the evidence in detail, we think the issue was raised, though perhaps meagerly so, of the consent of the prose-cutrix to the two acts of intercourse by John Alexander and appellant, respectively. The conviction of appellant was upon the theory that prosecutrix may have consented to the act of intercourse with, appellant, as the first count in the indictment charging rape by' force seems to have been abandoned. This being true, did the act of Alexander in having intercourse with prosecutrix with her consent prior to the act of Bill Ooots constitute a defense available to appellant? Under the terms of our statute and the decisions of this court, as well as those of other jurisdictions having similar statutes, only the first act of intercourse can amount to rape where the female is over 15 years of age and consents to such act. Article 1183, P. O.; McKnight v. State, 98 Tex. Cr. R. 355, 265 S. W. 892; Cloniger v. State, 91 Tex. Cr. R. 143, 237 S. W. 288; Norman v. State, 91 Tex. Cr. R. 486, 239 S. W. 976.

The appellant, might have been, and may yet for that matter upon another trial be, tried upon the indictment in the instant case for the act of Alexander, provided appellant was a principal in said act as defined by law. The acts which make the defendant a principal need not be alleged in the indictment. A principal offender may be charged directly with the commission of the offense, although it may not have been actually committed by him. Gallagher v. State, 34 Tex. Cr. R. 306, 30 S. W. 557. Branch’s P. C., § 676. To be present, the presence need not be an actual immediate presence such as would make the party an eye or an ear witness of what passes, but may be a constructive i>resence such as being in view or immediately at hand, Mason v. State, 32 Tex. Cr. R. 95, 22 S. W. 144, 408; Branch’s P. C., § 680; and one who agrees to the commission of an offense and is present when com mitted is guilty whether he aids or not, Taylor v. State, 9 Tex. App. 103; Attaway v. State, 35 Tex. Cr. R. 403, 34 S. W. 112.

We think it is clear under the authorities that appellant could be guilty as a principal to the crime of statutory rape, though the act of intercourse was by another. Heitman v. State, 78 Tex. Cr. R. 349, 180 S. W. 701; Dodd v. State, 83 Tex. Cr. R. 160, 201 S. W. 1014; White v. State, 60 Tex. Cr. R. 559, 132 S. W. 790; Ross v. State, 60 Tex. Cr. R. 547, 132 S. W. 793. A woman or even an infant incapable of the act of copulation may be guilty as a principal of the crime of rape. Law v. Com., 75 Va. 885, 40 Am. Rep. 750; Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536; Heitman v. State, 78 Tex. Cr. R. 349, 180 S. W. 701; Appellant, however, was tried for his own act, not that of Alexander, his alleged coconspirator. If prosecutrix had voluntarily surrendered her chastity to Alexander prior to appellant’s alleged act, she was not a chaste woman within the meaning of that term as used in the statute. If, under the circumstances of this case, prosecutrix had been raped by force prior to appellant’s criminal act, such prior act of intercourse would not have constituted a defense to appellant, or, if appellant had been tried upon the theory that he was a principal in the alleged criminal act of Alexander, manifestly Alexander’s act could not have constituted a defense. Being tried upon his own act in a consent case like this one, he was, we think, entitled to an affirmative instruction to acquit if the jury believed or had a reasonable doubt thereof that, prior to the alleged act of appellant, Alexander had had intercourse with prosecutrix, she assenting thereto. If she consented to the act of intercourse with Alexander, she was not a virgin, and not within the protection of the statute. This matter being timely and properly called to the attention of the trial court, his failure to so instruct the jury compels a reversal of the. judgment of conviction.

Other objections to the charge are. without merit. Most of them demand instructions which were clearly on the weight of the evidence. The bills of exception not discussed present matters not likely to again occur.

The judgment of the trial court is reversed, and the cause remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Oourt of Criminal Appeals and approved by the court.