33 Tex. Cr. App. 472, 475, 26 S. W. In a prosecution for rape, where the 327, 101 S. W. 1162. verdict convicting defendant of rape will not be reversed on the ground that there was no evidence of penetration. Duckworth v. State (Cr. App.), 63 S. W. 874. A conviction for rape will be reversed, for failure to prove penetration, where the prosecutrix subsequently denies her testimony, and stated that defendant did not have carnal intercourse with her, and there was no other evidence of penetration. Blair v. State (Cr. App.), 56 S. W. 622. d. Force, Nonconsent and Resistance. See ante, "Force," I, E; "Want of Consent of Female," I, G; "Resistance of Female," I, H. Where accused admits carnal intercourse and that he was armed with a was with prosecutrix's consent, and she denies such claim, and states that she sub pistol, but claims the act rape will not be disturbed. Myers v. State (Cr. App.), 62 S. W. 750. In a trial for rape, there was evidence that the prosecutrix was men-mitted through fear, a conviction for tally incapable of resisting the act of carnal knowledge, that she was enceinte, that defendant had confessed to having had intercourse with her, and that he had had opportunity therefor. Held, that the corpus delicti was sufficiently shown. Fredericson State, 70 S. W. 754, 44 Tex. Cr. App. her, and she, awaking, and believing 288. c. Carnal Knowledge. See ante, "Carnal Knowledge," I, F. Vague and uncertain proof of penetration will not sustain a conviction for rape. Baldwin v. State, 15 Tex. Cr. App. 275, 286; Davis v. State, 43 Tex. 189. The evidence showed that defendant, who was sleeping in the same room with prosecutrix, went to the bed on which she, with her husband and two children, lay, and had intercourse with him to be her husband, made no resistance, defendant not having used any stratagem to induce her to believe that he was her husband, but that she made an outcry immediately on discovering her mistake, when he left the bed. Defendant said that he was awakened by her, and recognized her To warrant a conviction for rape, by the light of the moon, and that the penetration must be proved beyond a act was done with her knowledge and reasonable doubt; but it may be consent. He denied prior familiarity proved by circumstantial evidence, and fear of her husband if caught. where defendant, before committing the crime, has reduced his victim to insensibility by blows. Word v. State, 12 Tex. Cr. App. 174. Where the prosecutrix testified that defendant had carnal intercourse with her and was the father of her child, a There was no moon on the night in question. Held, that the conviction would not be reversed. Payne v. State, 49 S. W. 604, 40 Tex. Cr. App. 202, 76 Am. St. Rep. 712. In a rape case, evidence as to force held sufficient to go to the jury. Cole v. State, 57 Tex. Cr. App. 51, 123 S. W. for several weeks after the event-the 409. Fraud. Evidence held insufficient to sustain a conviction of rape by fraud, as there was no showing of any trick, device, or stratagem practiced by defendant to induce prosecutrix to believe that he was her husband. Huffman v. State, 80 S. W. 625, 46 Tex. Cr. App. 428. e. Failure to Complain or Make Out cry, and Delay in Complaining. Where the prosecutrix in a rape case remains silent for three months after the alleged rape was committed, the circumstance is deemed to lessen the credit to be given her testimony. Topolanck v. State, 40 Tex. 160; Price v. State, 36 Tex. Cr. App. 143, 145, 35 S. W. 988; Tittle v. State (Cr. App.), 38 S. W. 202, 203. evidence is not sufficient to sustain a conviction. Kennon V. State (Cr. App.), 42 S. W. 376. Prosecutrix testified that the act was committed in a room adjoining her mother's, and that after defendant left she went into her mother's room, and spent the rest of the night. She did not inform her mother of the outrage, nor was she corroborated as to staying in her mother's room the rest of the night. When her child was born, she told her mother that defendant was its father, but did not charge him with rape. Her explanation of her silence as to the alleged crime was that defendant threatened to kill her if she made complaint. Held, that a conviction should be set aside. Thompson v. State, 33 Tex. Cr. App. 472, 26 S. W. 987. f. Incapacity to Consent. See ante, "Incapacity to Consent," In order to sustain a prosecution for rape, it is not necessary that the prosecutrix should have at once made complaint, and her failure to complain un-I, G, 4. til two months after the outrage goes only to the weight of her testimony. Hill v. State (Cr. App.), 77 S. W. 808. In a prosecution for a rape, when the state introduces prosecutrix as a witness, it vouches for her mental competency at the time the crime occurred. Thompson v. State, 33 Tex. Cr. App. 472, 26 S. W. 987. Prosecutrix testified that she fought defendant with her hands, and that she made no outcry, because he had his hand on her throat. A physician testi A conviction for rape on the uncorroborated testimony of the prosecutrix alone can not be sustained, where it appears that she went riding with defendant a few days after the alleged crime, and made no complaint to any one until her condition became no-fied that he had known her four years; ticeable, some seven months afterwards, the only excuse for her long silence being an alleged threat by defendant to kill her father in case she told. Price v. State, 36 Tex. Cr. App. 143, 35 S. W. 988. Where the sole witness for the state is the prosecutrix, and her evidence shows that defendant drove her in his buggy through a village, meeting a number of people, before he took her to the woods, where they had intercourse; that she made no outcry on the way, although she knew his intention; and that she made no complaint that she had not the will power to oppose carnal intercourse; that, when she was "cool and quiet," she had very good sense, and, when excited, very little.. Held not to show that she was so mentally diseased as to have no will to oppose the act. Thompson v. State, 33 Tex. Cr. App. 472, 26 S. W. 987. Witnesses in a prosecution for rape testified that they considered the prosecutrix of weak mind, but their opinions were based on certain eccentricities. It appeared that she had charge of the other children in the family, and made contracts for their hire, and kept ac count of their wages; that she planned the occasion for the act, and selected a night when she would be alone at the house; and, further that she prepared herself, and went away with the defendant. Held, that such evidence did not show the prosecutrix to be insane or deprived of her will power to resist the act of carnal knowledge, so as to make defendant guilty of rape. Lee v. State, 64 S. W. 1047, 43 Tex. Cr. App. 285. g. Identity of Accused. In a rape case, wherein the prosecuting witness positively identified defendant as the person who committed the outrage on her, and her testimony is corroborated by the testimony of other witnesses, a judgment of conviction will not be disturbed. Dove v. State, 36 Tex. Cr. App. 105, 35 S. W. 648. In a prosecution for rape, evidence as to the identification of defendant examined, and held to sustain a conviction. Boyd v. State, 94 S. W. 1053, 50 Tex. Cr. App. 138. h. Female under Age of Consent. An instruction, in a prosecution for rape, that, to convict, the jury must believe beyond a reasonable doubt that defendant was not the wife of appellant, and was under the age of consent, held correct. Gonzales v. State (Cr. App.), 62 S. W. 1060. On a trial for rape of a female under the age of fifteen years, evidence held not to show a common-law marriage between the parties. Wofford v. State, 60 Tex. Cr. App. 624, 132 S. W. 929. Evidence Held Sufficient to Support Conviction.—In a prosecution for rape on a female under the age of consent, evidence held to sustain a conviction. Battles v. State (Cr. App.), 140 S. W. 783; Freeney v. State (Cr. App.), 102 S. W. 113; Price v. State, 44 Tex. Cr. App. 304, 70 S. W. 966; Henard v. State, 47 Tex. Cr. App. 168, 82 S. W. 655; Bartlett v. State (Cr. App.), 51 S. W. 918. Evidence Held Insufficient to Support Conviction.-Evidence held insufficient to sustain a conviction of statutory rape. Donoghue v. State (Cr. App.), 79 S. W. 309; Kee v. State (Cr. App.), 65 S. W. 517; Parnell v. State (Cr. App.), 42 S. W. 563. Evidence Held Sufficient That Prosecutrix under Age of Consent.—Evidence, in a trial for the rape of a female under the age of consent, held sufficient to show that she was under fifteen years of age. Blackwell V. State, 51 Tex. Cr. App. 24, 100 S. W. 774; Curry v. State, 50 Tex. Cr. App. 158, 94 S. W. 1058. Evidence Insufficient to Show Prosecutrix under Age of Consent.-Both the father and mother of prosecutrix testified that she was not twelve years old, but that they did not know what her age was, and neither of them could state the year in which she was born. One physician testified that from her appearance and development he thought she was not twelve years old, and another that in his opinion she was ten or twelve or more. Held, that the evidence did not show beyond a reasonable doubt that she was under twelve years of age. Lawrence v. State, 35 Tex. Cr. App. 114, 32 S. W. 539; Duckworth v. State, 42 Tex. Cr. App. 74, 57 S. W. 665. Carnal Knowledge.-Medical testimony should be had in investigations of cases of rape upon a female under ten years; an examination of the injured party should be had; and every source of knowledge of the fact explored. Davis v. State, 42 Tex. 226. i. Attempt or Assault with Intent to Rape. (1) Attempt. Defendant seized prosecutrix and took her down a river bank against her will and over her protest; and when found there, later, the girl was on her back, with her clothes up, and he lying by her side, with his pants 153. entirely unbuttoned. Held, that the v. State, 60 Tex. Cr. App. 547, 132 S. W. 1088. A conviction of an attempt to rape Evidence held sufficient to support (2) Assault with Intent to Rape. A conviction for assault with intent A conviction of an assault with in- Evidence Held Sufficient to Sustain a W. 888; Scott v. State, 51 Tex. Cr. bertson v. State, 30 Tex. Cr. App. 498, 17 S. W. 1068; Carroll v. State, 24 Tex. Cr. App. 366, 368, 6 S. W. 190; Moore v. State, 20 Tex. Cr. App. 275; Jones v. State, 18 Tex. Cr. App. 485, 489; Johnson v. State, 17 Tex. Cr. App. 565; Sanford v. State, 12 Tex. Cr. App. 196; House v. State, 9 Tex. Cr. App. 53; Irving v. State, 9 Tex. Cr. App. 66. j. Corroboration of Female. Necessity for.-A conviction of rape may be had on the uncorroborated testimony of prosecutrix. Hill v. State (Cr. App.), 77 S. W. 808. In a prosecution for rape, evidence must be sufficient to satisfy the jury of the guilt of accused, giving him the benefit of doubt as in other cases, and no more than the testimony of injured party is required, whether she be corroborated or not. Goss v. State, 40 Tex. 520, 522; Keith v. State (Cr. App.), 56 S. W. 628. Uncorroborated Testimony Should Be Closely Scrutinized.—Where a case of rape rests solely upon the testimony of the prosecutrix, it is the duty of the jury to scrutinize and weigh her testimony very closely. Price v. State, 36 Tex. Cr. App. 143, 145, 35 S. W. 988. As to the question whether or not a conviction for rape can be had on the uncorroborated testimony of the injured female, the rule laid down by Lord Hale obtains in this state, viz.: The party ravished may give evidence upon oath, and is in law a competent witness, but the credibility of her evidence, and how far she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that may concur in that testimony. Gazley v. State, 17 Tex. Cr. App. 267. When Testimony of Suspicious or Doubtful Character.-Courts have been cautious in sustaining convictions for rape upon uncorroborated testimony of prosecutrix only where her evidence was of a suspicious or doubtful character, which raises the question of fact and not of law. Gonzales v. State, 32 Tex. Cr. App. 611, 620, 25 S. W. 781. A conviction for rape on a girl of nine will be set aside, where the girl's testimony is open to suspicion, is uncorroborated, and apparently was not satisfactory to the jury. Montresser v. State, 19 Tex. Cr. App. 281. Where Prosecutrix Failed to Complain for Several Weeks.—A conviction for rape can not be sustained upon the unsupported testimony of the person injured, who did not divulge the outrage until several weeks after its perpetration. Topolanck v. State, 40 Tex. 160. Sufficiency as to Female under Age of Consent. In a prosecution for rape on a female under the age of consent, a conviction may be sustained on the victim's uncorroborated testimony. Battles v. State (Cr. App.), 140 S. W. 783. See, also, Wallace v. State, 48 Tex. Cr. App. 548, 89 S. W. 827. Pen. Code, art. 633, whereby it is made rape to have intercourse with a female under fifteen years of age, with or without her consent, precludes any guilty participation by the female in the crime; and, though there be many acts, she was not an accomplice, so that the law of accomplice testimony would apply to her evidence. Danley v. State, 71 S. W. 958, 44 Tex. Cr. App. 428. Though there may be a conviction for rape, upon the uncorroborated testimony of the injured female, notwithstanding she be a child under the age of ten years, it is in that respect a case requiring special scrutiny by the jury, and a careful weighing of the evidence, with all remote and near circumstances and probabilities. In all such cases extraordinary effort should be made to secure circumstantial evidence tending to confirm the main witness. Gazley v. State, 17 Tex. Cr. App. 267. In a prosecution for statutory rape, |