The opinion
ON MOTION FOR REHEARING.
GRAVES, Judge.
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Appellant again asserts that the resistance offered by the prosecuting witness fell short of that required by law, as evidenced by our previous decisions as well as the statute, Art. 1184, P. C. The trial court had this statute in mind when in his charge he applied the law to the facts present, and gave the definition of “force” as set forth in the statute. He also instructed the jury relative thereto that unless they believed beyond a reasonable doubt that the prosecutrix “used all the force within her power to resist, taking into consideration the relative size and strength of the parties, together with all other facts and circumstances in the case, you will acquit the defendant”. The relative size and strength of the parties was evident to the jury, both parties being present before them, one being shown by proof to be 27 years of age, the father of a four-year-old child and weighing 150 pounds. The testimony also showed that the lady was 28 years old, and the mother of two children; that for four years since the birth of her last child she had a female trouble caused by childbirth and was under treatment of a physician therefor; that she was sick at the time; that soon after being released by appellant, she was taken to a doctor’s office, where she was shown to be very nervous and hysterical. She was a small woman, did not have much strength, and was sick on the day of the alleged occurrence. The jury saw her and were told to take into consideration the relative size and strength of the parties, and they decided under the charge that she used all the force within her power to resist appellant’s attack. We think such holding is supported by the evidence.
The motion will be overruled.