¶1*354 ON MOTION FOR REHEARING.
¶2 Appellant offers but one proposition in his motion for a rehearing and that is the contention that the indictment herein is insufficient in that same fails to allege that the person alleged to have been raped was a female. It is alleged that appellant did ravish and carnally know the child, naming her, and that such child was under the age of 18 years and was not the wife of the appellant. The decisions are numerous and uniform that such lack of allegation would have been cured in the event that the use of the personal female pronoun had been used in connection with the name, or with reference to the injured person. We are then relegated to the proposition as to whether there is alleged herein, in some manner, the female character of the person injured.
¶3 Mr. Bishop in his New Criminal Procedure, (2nd Ed.) Vol. 3, p. 1831, sec. 952, has the following to say:
“Though rape can be committed only by a male person arrived at puberty, and the victim must be a female, — and though the statute of Westm. 2 has the words ‘man’ and ‘woman,’ and our American statutes are in like terms, — it is not necessary to aver, in any case, either that the defendant is a man or that the victim is a woman. This is sometimes explained by the saying that the court will recognize the sex by the names and the pronouns. But this result is believed to follow equally and more properly from the general doctrine that neither the defendant’s capacity to commit a crime nor the injured person’s to be the victim of it need ever be alleged, a charge of its actual commission covering the whole ground and being always sufficient.”
¶4 Mr. Wharton, in his Criminal Law, (10th Ed.) Vol. 1, p. 1011, sec. 740, relative to the crime of rape, says: “Sex need not be specifically averred,” cititng cases from Arkansas, California, Indiana, Kansas, Massachusetts, Missouri, and also Cornelius v. State, 13 Tex. App. 349. He then follows with the statement showing the use of the feminine pronoun as supplying the place of such allegation, with cited cases from Kansas, Iowa, Missouri, North Carolina and Virginia.
¶5 It has been held by this court that the word “ravish” is a necessary word in charging a rape of a woman, and is equivalent to saying that one had carnal knowledge of a woman without her consent.
¶6*355 We quote from Fields v. State, 39 Tex. Cr. R. 488, 46 S. W. 814, as follows:
“At common law the term or word ‘ravish’ is essential in every indictment for rape; and it appears to include the idea that the party charged, forcibly and against the will of the woman, had carnal knowledge of the female. See Harman v. Com., 12 Serg. & R. 69. The learned judge in that case cites the definitions of the term ‘ravish’ by Lord Hale, Hawkins, and Chitty, which support the view above announced, to-wit, that the word ‘ravish’ is equivalent in meaning to carnal knowledge of the woman against her will and consent. For a further definition of the term ‘ravish’ see Harper v. Delp, 3 Ind. 225; O’Connell v. State, 6 Minn. 279 (Gil. 190) ; and Century Dictionary. This same view appears to prevail in this state. See Davis v. State, 42 Tex. 226; Elschlep v. State, 11 Tex. App. 301; Gibson v. State, 17 Tex. App. 574. Evidently, the pleader in this case, from negligence, left off the word ‘knowledge’ after the word ‘camal.’ But we hold that this was immaterial, in view of the fact that the indictment contains the distinct allegation that the said W. S. Fields did then and there ravish the said Alice Requardt, which is equivalent to saying that he had carnal knowledge of her without her consent.”
¶7 In Gibson v. State, 17 Tex. App. 574, it was contended that in a charge of rape of a woman that the peculiar wording of the statute demanded that the indictment should contain the word “woman” if the first portion of the statute, (now Art. 1183, P. C.,) was relied upon as the basis of a rape by force, threats or fraud of a person old enough to come within the age of consent, but that if the latter portion of such statute be invoked which reads, “or the carnal knowledge of a female under the age of (now) eighteen years”, then it was contended that the word “female”, being used relative to this woman over the age of consent, was a misnomer and rendered the indictment void. The court there held as follows:
“It will be seen that the charge, omitting and leaving out these words entirely, is that defendant ‘an assault did make with the unlawful and-felonious intent, then and there, of him, the said John Gibson, her, the said Mary Johnson, alias Mary Gibson, to carnally know and to ravish.’ The word ‘ravish’ or ‘ravished’ is the essential word in all indictments for rape or for assault with intent to rape; it is indispensable. (2 Bish. Cr. Proc., sec. 953.) It means all that is necessary to a charge of rape, and imports not only violence on the part of the man but resistance and want of consent on the part of the woman; *356 and where that word is used in an indictment for rape, it is but repetition to allege that the defendant carnally knew the woman forcibly and against her will. (Davis v. State, 42 Texas, 226. And see the same question we are discussing fully discussed, and the authorities cited, in Williams v. The State, 1 Texas Ct. App. 90, and Mayo v. The State, 7 Texas Cr. App., 342.) Under those authorities it is clear that the word ‘ravish’ used in the indictment before us, renders the words ‘without the consent and against the will of’ mere surplusage which may be disregarded as entirely unnecessary to the charge. If surplusage merely, then they should be eliminated and are not binding.”
¶8 Again, it has been held in Williams v. State, 1 Tex. App. 90, that the word “ravish” implies force and violence in the man, and want of consent in the woman. That the indictment need not aver that the rape was committed against the will of the woman seems to be the opinion of authors of the hig'hest authority, citing 1 Hale, 632; Hawk, b,2, ch. 25, sec. 56; 3 Chitty on Cr. Law, 812; and 1 East, 447. … “It may be fairly concluded, from all the authorities, that the words ‘against her will’ are not essential; and certainly the word ‘ravish’, as commonly understood, implies that it was against her will. Harman v. Commonwealth, 12 Serg. & Rawle, 69.”
¶9 Again, in Williams v. State, supra, in a quotation from O’Connell v. State, 6 Minn., 279, it is said:
“And, notwithstanding the statute prescribing the punishment uses the words, ‘and carnally know by force and against her will,’ these words also are omitted. The reason these words, or their equivalents, were not deemed essential was because they are all included or embraced in the word ‘ravish’ or ‘ravished,’ which is the essential word in all indictments for rape. It imports not only force and violence upon the part of the man but resistance on the part of the woman. … But even at common law, where the greatest particularity was required, it was long since held that an indictment omitting the assault was not defective, and that the words ‘feloniously did ravish’ were sufficient, without the word ‘carnally know and forcibly against her will.’ ”
¶10 In Davis v. State, 42 Tex. 226, it is said:
“The reason given for this is that, by the charge ‘did ravish,’ force and violence by the man, and want of consent of the woman, are implied.”
¶11*357 If the word “ravish” can import violence and lack of consent, as held in many other cases, see Words & Phrases, Permanent Edition, Vol. 36, pp. 144-145, then is there any valid reason not to allow any additional imputation that is found in such word?
¶12 Webster’s New International Dictionary (2nd Ed.), defines the word “ravish” to mean “to commit rape upon (a woman) and rape is defined by Art. 1183, P. C., to be “the carnal knowledge of a woman without her consent obtained by force, threats or fraud, … or the carnal knowledge of a female under the age of eighteen years other than the wife of the person with or without her consent and with or without the use of force, threats or fraud.”
¶13 Then the argument necessarily follows that if the word “ravish” imports the rape of a woman, and carries with it the allegation that it alone imputes force and lack of consent, we are persuaded that such word should be given, not its partial import, but its full import; and by the same reasoning, be held to mean the rape of a woman, to-wit, the injured person set forth in the indictment.
¶14 Article 398, C. C. P., provides that “the certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”
¶15 Again, the certainty required to be shown in an indictment is a matter of statute, and is found in Art. 405, C. C. P., as follows:
“An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words ‘force and arms’ or ‘contrary to the form of the statute’ necessary.”
¶16 But, in view of appellant’s insistence that the word “female” is necessary to the validity of the indictment because a male person cannot be the victim of a rape, it is again seen that William R. Ray is nowhere in said indictment referred to as *358 a “male person,” yet it is a matter of common knowledge that only male persons are able to themselves commit such crime. Therefore, we are relegated to the fact that the word “rape” imports the masculinity of the person charged, and if so, it seems to follow that the victim of a rapist — the ravished person — is a “female”.
¶17 Then, the further allegation that the injured person was not the wife of appellant again carries an import that we can impute thereto that she was of a class that could only be classified as a wife because of her femininity as well as the evident female characteristics carried by her name, as is shown in the original opinion herein.
¶18 Taking all these different characteristics and statements together, we are convinced that the indictment would compel any “person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” Certainly, no one would controvert the fact that such indictment is plain enough to plead in bar of a second conviction for rape on this same child. See Art. 398, Vernon’s Ann. Tex. C. C. P.
¶19 The original opinion was agreeable to all of us when submitted. We thought it sufficient then, that a feminine name being used complied with the statute. I think so yet. What I have written herein is no recession from the view expressed in the original opinion, but is an additional discussion which I believe to be supported by sound reasoning and good authority.
¶20 The motion for rehearing will therefore be overruled.