The opinion
on motion for rehearing.
MORROW, Presiding Judge.
The subject of the alleged rape is Estelle Gray, the wife of Freeman Gray. The following is a synopsis of her testimony touching the commission of the offense: Appellant was a married man and resided with, his family a short distance from the home of the prosecutrix. Other persons lived in the immediate vicinity. About the first of September, 1925, the husband of the prosecutrix was away from home. Appellant came to the house in the evening possessed of a shotgun, and requested that the prosecutrix engage in the sexual act. She refused and the appellant departed. On the following morning he returned, again bringing his gun, and with a threat to kill the prosecutrix and by physical force he overcame her resistance and succeeded in performing the act entirely against her will. She made no report of it at the time and no outcry, but when her husband returned that night she reported it to him. After receiving the report her husband went to the home of the appellant, and returned soon thereafter,
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telling the prosecutrix that he had seen the appellant about it. After receiving the information, Freeman Gray and the prosecutrix continued picking cotton upon the farm which they were renting from the appellant. A short time after the alleged occurrence the appellant purchased the crop which was on the place and Gray and his wife left the country and remained for some two months.
The indictment was returned on the 18th day of November, 1925. There was evidence that Freeman Gray reported the offense to thé County Attorney at some time in September, and was told by him to bring his wife back so that complaint might be filed, and that later she was brought back and the complaint filed.
The appellant’s wife testified that the prosecutrix and her husband left early in August; that Freeman Gray came to the home of the appellant after a bucket of water, and the witness asked him (Gray) what he and his wife were quarreling about. He said that he was not going to live with her any longer because she and the appellant were unduly intimate, indicating that this relationship was of considerable duration. Gray said he was going to leave his wife; that the fault was hers and not that of the appellant. The witness also said that Gray on several occasions had whipped his wife, and that he whipped her on the day that he left; and that after he whipped her she came and spent a part of the night at the home of the appellant.
Appellant testified that Gray and his wife were working and making a crop on the land which he had rented. He also testified that on various occasions previous to the time of the alleged offense, he had been unduly intimate with the prosecutrix; that before leaving a conversation took place between Gray, his wife and the appellant. Gray had asked the appellant to come to his house that night, stating that the prosecutrix was sick. Upon going to the house, the appellant found that she was not sick, and after some preliminary talk, both she and the appellant admitted the existence of the previous illicit relations with the consent of the prosecutrix. It was after that time that the appellant bought Gray’s crop from him and went to an officer and had a bill of sale prepared; that he heard nothing of any charge of rape against him until after Gray and his wife had gone west and returned. There was some testimony of a theft having been committed in the community, and the appellant testified that Gray had stated that the reason he was going west was that the law was after him; that after his return Gray wanted to repossess his crop but the appellant
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declined to rescind the trade that had been made for the crop. The conversations with the appellant’s wife and with the appellant imputed to the prosecutrix were denied by her. Appellant specifically denied using any force or threats in any of his relations with the prosecutrix.
It is to be noted that the only person to whom the prosecutrix claimed to have made any complaint or outcry was to her husband. He was not called as a witness by the state, nor do we find that his failure to be called is accounted for in any definite manner. The offense, that is, the sexual relations without the consent of the prosecutrix, rests solely upon her uncorroborated testimony. It is believed that giving effect to all circumstances explanatory of the failure to make outcry, the evidence is calculated to leave the mind in doubt on the issue of consent. See Underhill’s Crim. Ev. (3rd Ed), Sec. 620, and notes; also Bishop’s New Crim. Law (9th Ed.), Vol. 2, Sec. 1122, subd. 5; Terry v. State, 98 Tex. Crim. Rep. 540; Dickson v. State, 105 Tex. Crim. Rep. 534; Ruling Case Law, Vol. 22, p. 1187, Sec. 19; Brown v. State, 127 Wis. 193 ; 7 Ann. Cas. 258.
The failure of the state to call her husband, the only person to whom the prosecutrix claimed to have made an explanation, emphasizes the reason for doubt. The importance of his absence, moreover, is emphasized by the testimony of the appellant and his wife relating conversations and transactions with the husband inconsistent with the theory of non-consent.
The motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.