Wallace v. State , 146 Tex. Crim. 518 ( 1943 )

Appellant insists that his defensive theory of previous unchastity of the prosecutrix was not affirmatively submitted to the jury. With this contention we cannot agree, for the jury was instructed to the effect that, if it believed or entertained a reasonable doubt that, prior to such time (June 6, 1942), the prosecutrix had had carnal intercourse with the defendant or any other person, to acquit him. Under the facts, this was a sufficient presentation of the defensive theory mentioned.

Appellant insists that, notwithstanding the fact that no exception was reserved to the charge of the court, the failure to present to the jury the defense of alibi was, nevertheless, reversible error. Conceding, only for the purpose of this discussion, that such defense was raised by the testimony, the failure to reserve an exception to the charge precludes considering the question, under the express provisions of Art. 658, C. C. P.

The motion for rehearing is overruled.

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.