¶1(dissenting).
¶2I respectfully dissent because I am constrained in this case to believe that the testimony of the State is such as does not comport with human experience and with reason.
¶3The prosecutrix vividly demonstrated her physical prowess by twice “flooring” her assailant — not for raping her and not through fear of the knife but on account of the raincap being placed over her mouth and nose. She possessed this same ability and strength at the time of the intercourse a very few minutes earlier. Had she utilized her strength and approximate forty to fifty-pound weight advantage of her two hundred ten pounds over the appellant’s one hundred sixty or one hundred seventy-five pounds, she could and would have no doubt repelled his advances and put an end to his lustful desire to have intercourse with her. This, I think, was incumbent upon her to do. I feel that this case is controlled by our holding in Perez v. State, 50 Tex.Cr.R. 34, 94 S.W. 1036.
¶4The evidence in Perez’s case, supra, is a great deal more cogent than in this case, for the reason that Perez, from the State’s testimony, had a pistol in his hand and laid it down by the head of the prosecutrix at the time of the commission of the offense. The material question in Perez was the sufficiency of the evidence to sustain the conviction. In a very able opinion, Judge Henderson, speaking for this Court, said:
“Threats apart, every exertion in her power under the circumstances must be made to prevent the crime, or consent will be presumed. Mooney v. State, 29 Tex.App. 257, 15 S.W. 724; Rhea v. State, 30 Tex.App. 483, 17 S.W. 931. In determining the sufficiency of the force, or the effect of the threat, when both are in proof, it is proper to consider the cogency which the threats may have contributed to the force to intensify the influence which the force may have imparted to the threat. Sharp v. State, 15 Tex.App. 171. Bass v. State, 16 Tex. [App.] 62. The mere formal statement of the prosecutrix that she did not consent will not be the criterion. Although some force be used, yet if she does not put forth all the power of resistance which she was capable of exerting under the circumstances, it will not be rape.”
¶5It is evident from reading the opinion that the prosecutrix in Perez’s case, supra, was afraid; that she made or threatened to-make some smothered cry, and appellant threatened her.
¶6It is my view that the State made a stronger case in Perez, supra, than they did in the case at bar. Perez reflects no attack upon the appellant by the prosecutrix, as we have in this case. The prosecutrix,, here, testified that she knocked the appellant down twice. While it is true, from her testimony, that she struck appellant and knocked him down twice after the attack had been made upon her by him, it does vividly portray her size, strength, and the resistance that she was capable of making. These pertinent evidentiary facts lead me to the inescapable conclusion that had the prosecutrix resisted commensurate with her strength and ability, there would have been no rape.
¶7I believe in the proper enforcement of the law, and I am loathe to disturb the verdict of juries. The writer is also aware that in this character of case, where the minds of jurors are easily excited and inflamed, how prone they are to return verdicts of guilty and visit upon the defendant in such *389cases, under the laws of this State, confinement in the penitentiary for life. While this Court might not have adhered rigidly to the holding in Perez, supra, in many years, I still find the opinion followed by this Court. I can find no basis to distinguish the case at bar from the Perez case. The writer feels that Perez, supra, should be overruled if this case is affirmed.
¶8I have carefully considered every facet and all of the facts, and I am unwilling to lend the sanction of my approval to what I regard as insufficient evidence.
¶9I think the judgment of the trial court should be reversed and the cause remanded.