Thomas v. State

W. J. HARALSON, Supernumerary Circuit Judge.

The appellant was convicted of rape and sentenced to imprisonment for twenty years, from which judgment he has appealed.

At the conclusion of the testimony introduced by the State, the appellant moved to exclude the State’s evidence on the ground that it failed to make a prima facie case of-the charge against the appellant, and that there was a fatal variance in the proof and the pleading in the case. The court overruled the motion.

It is the contention of appellant that the State failed to prove any penetration, a constituent element of the offense…