The opinion
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ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
Appellant contends that the refusal to instruct the jury on the law of duress was error. Art. 38 of the Penal Code, 1925, reads as follows:
“A person forced by threats or actual violence to do an act is not liable to punishment for the same. Such threats, however, must be—
“1. Loss of life or personal injury.
■ “2. Such as are calculated to intimidate a person of ordinary firmness.
“3. The act must be done when the person threatening is actually present.
“The violence must be such actual force as restrains the person from escaping, or such ill-treatment as is calculated to render him incapable of resistance.”
Touching the subject of duress, Mr. Wharton, in his work on Homicide, p. 68, after stating that in order to amount to duress the act or threat must portend immediate injury in the event the party threatened refuses to aid in the criminal act, says:
“But, if after the danger passes, he continues to consent, advise, aid, abet or assist in such act, he is as guilty as if such danger had never threatened him.”
The principle stated is approved in Howard v. State, 92 Tex. Crim. Rep. 232; Welk v. State, 99 Tex. Crim. Rep. 239.
From the appellant’s testimony it appears that upon the invitation of Rodriguez, the appellant accompanied him at night “to make money;” that they observed an automobile upon one of the streets of the city of San Antonio and Rodriguez proposed to assault the people that were in it. Appellant demurred and Rodriguez, being possessed of a pistol at the time, commanded the appellant to assist, threatening to kill him if he refused. The parties in the car were assaulted by both the appellant and Rodriguez. Rodriguez tied Shaw, and the appellant remained alone at the car. After tying Shaw, Rodriguez made him and the girl get on the back seat. Rodriguez and the appellant rode on the front seat of the car, which was driven by Rodriguez about thirteen miles into the country. Rodriguez then took Shaw out of the car and took him to one side while the appellant remained at the car with the girl. After taking Shaw away and tying him, Rodriguez came back to the car and raped the girl while the appellant was standing by. He then commanded the appellant to do likewise, threatening to kill him in case he refused to do so. According to his testimony, appellant only
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pretended to rape the girl. That he did in person ravish her the state’s evidence is direct and cogent. The appellant admitted that he robbed the girl and testified that she was raped twice by Rodriguez, he taking her into the brush for the purpose.
On the face of the testimony, the acts of Rodriguez, as well as those of the appellant, are chargeable to him unless he was under duress. Under the indictment, he might have been convicted for the rape of the prosecutrix committed by Rodriguez. See Dodd v. State, 83 Tex. Crim. Rep. 165; Campbell v. State, 63 Tex. Crim. Rep. 595; Williams v. State, 42 Tex. Crim. Rep. 392; Bell v. State, 1 Tex. Crim. App. 598, and other cases cited in Branch’s Ann. Tex. P. C., p. 344, Sec. 676. Unless the appellant, at the time the girl was raped by Rodriguez, was in danger such as is contemplated in the statute, he would not under the law be exculpated. In Wharton’s Criminal Law (Kerr’s 11th Ed.), Sec. 383, it is said:
“But to be available as a defense, the fear must be well-founded, and immediate and actual danger of death or great bodily harm must be present, and the compulsion must be of such a character as to leave no opportunity to accused for escape or self-defense in equal combat.”
See also Carlisle v. State, 37 Tex. Crim. Rep. 108; Arp v. State, 97 Ala. 5 , 19 L. R. A. 357; Baxter v. People, 8 Illinois, 368; Leach v. State, 99 Tenn. 584 , 42 S. W. 195 ; Rizzolo v. Com., 126 Pa. 54 , 17 Atl. 520 ; Paris v. State, 35 Tex. Crim. Rep. 82.
The appellant was not entitled to have the jury instructed to acquit him if he committed the rape upon the prosecutrix under the duress of Rodriguez.
The motion for rehearing is overruled.
Overruled.