1. — Evidence — Rape — Penetration.
Evidence establishing a penetration of the vulva or labia was sufficient to establish penetration as required in prosecution for rape.
2. — Evidence — Sufficient.
Defendant denied the assault attributed to him by prosecutrix. His defensive theory was that if prosecutrix was raped it was by some other person which was submitted to the jury, and no exception or objection to the charge was taken or made. The evidence was sufficient to warrant conclusion of guilt.
DAVIDSON, Judge.
Rape is the offense; the punishment, five years in the penitentiary.
Prosecutrix, a thirteen-year-old girl, testified that appellant by force and without her consent raped her. She said the act of intercourse was complete.
The day following the assault, prosecutrix made an outcry, as a result of which a physician made a physical examination of her privates. The examination failed to evidence a complete penetration of the female's privates but it did reveal a penetration of the vulva or labia.
Such facts are deemed sufficient to establish penetration, as required in a prosecution for rape. Mirick v. State, 83 Tex. Crim. 388, 204 S.W. 222; Brown v. State, 112 Tex.Crim. R., 14 S.W.2d 63.
Appellant denied the assault attributed to him by the prosecutrix and defended on the ground that if prosecutrix was raped, as claimed by her, it was by some other person.
The defensive theory was pertinently submitted to the jury, and no exception or objection to the court's charge was reserved to the court's charge.
No bills of exception accompany the record.
The facts being sufficient to warrant the jury's conclusion of guilt, the judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.