It is generally held, under a statute limiting in its enacting clause the offense of rape to a female who is not the wife of the perpetrator, as in this case, that an indictment therefor should negative marriage relation between the parties. 22 R. C. L. p. 1199; Young v. Territory, 8 Okla. 525, 58 P. 724; People v. Miles, (Cal.) 101 P. 525; Rice v. State, 37 Tex.Crim. 36; 38 S.W. 801; Bice v. State, 37 Tex.Crim. 38, 38 S.W. 803; Edwards v. State, 37 Tex.Crim. 242, 38 S.W. 996; Dudley v. State, 37 Tex.Crim. 543, 40 S.W. 269; Payne v. State, 38 Tex.Crim. 494, 43 S.W. 515; People v. Stowers, supra; People v. Trumbley, 252 Ill. 29, 96 N.E. 273; Lenord v. State, (Arizona) 137 P. 412; State v. May, (Wash.) 109 P. 1026.

The analogy between the two cases, and between section 7 of the Act of February 7, 1856, and section 5 of the Act of March 26, 1881, is too apparent for comment. The Hewitt case has been followed and approved in the following cases: Wilburn v. State, 25 Tex. 738; Horan v. State, 25 Texas Sup., 271; Duke v. State, 42 Tex. 455; Rice v. State, 37 Tex. Crim. 36; Williamson v. State, 41 Tex. Crim. 464. Is that decision the law? If not, it should be overruled by this court; it has never been overruled before. If it is the law, it settles this case.

Other cases cited by plaintiff in support of her argument include Lane v. Duchac, 73 Wis. 646, 41 N.W. 962 (Sup.Ct. 1889), which noted that the mere fact that a married woman becomes a mortgagee using her baptismal name does not thereby render her a fictitious person and invalidate the mortgage. The case did not decide the question of what is a married woman's legal name, but rather dealt with her common-law right to adopt any name she chooses for business purposes, as in the Hauptly case, supra. Also cited are Rice v. State, 37 Tex. Cr. 36, 38 S.W. 801 (Ct.App. 1897), and State ex rel. Bucher v. Brower, supra. In Rice the court, in dealing with the contention that the State in a rape case had failed to prove that the victim was not the wife of defendant, as was required by statute, stated:

By definition an indictment or information is a written statement "accusing a person therein named of some act or omission which, by law, is declared to be an offense." Art. 21.01, V.A.C.C.P. It was a familiar rule then, and still is, that "where an offense is defined by our statute (and there are none other in this State), all of the essential elements of the offense must be alleged in the indictment," Rice v. State, 37 Tex.Crim. 36, 38 S.W. 801 (1897). Likewise, an indictment drawn in the language of the statute creating and defining an offense is ordinarily sufficient, Burney v. State, 171 Tex.Crim. 274, 347 S.W.2d 723, 725 (1961).

Recent commentaries and decisions which follow the same line of reasoning adopted by this court are: Custer v. Bonadies (1974), 30 Conn. Sup. 385, 318 A.2d 639, 641; State ex rel. Krupa v. Green (1961), 114 Ohio App. 497, 177 N.E.2d 616, 619; Stuart v. Board of Elections (1972), 266 Md. 440, 295 A.2d 223, 226; Rice v. State (1897), 37 Tex.Crim. 36, 38 S.W. 801, 802; S. Bysiewicz and G. MacDonnell, Married Women's Surnames, 5 Conn. L. Rev. (1973), 598, 602; K. Carlsson, Surnames of Married Women and Legitimate Children, 17 N.Y.L. Forum (1971), 552, 555; J. Lamber, A Married Woman's Surname: Is Custom Law?, 1973 Wn. U.L.Q. 779, 783; P. MacDougall, Married Women's Common Law Right to Their Own Surnames, 1 Women's Rights L. Rep. 2 (No. 3, Fall/Winter 1972/73); Comment, The Right of a Married Woman to Use Her Birth-given Surname for Voter Registration, 32 Md. L. Rev. (1973), 409, 413-415; and Female Surnames and California Law, 6 UCD L. Rev. (1973), 405, 406. Since we conclude in this case that Kathleen Rose Harney was never compelled to change her name, nor did she ever in fact adopt the surname Kruzel by usage, her petition, although ostensibly brought under sec. 296.36, Stats. 1971, amounted only to a request for judicial recognition that she had been correct in using her maiden surname in the past.

Id. at 645 (Emphasis supplied.) Cases tending to support the rationale of Green are Lane v. Duchac, 41 N.W. 962, 965 (Wis. 1889); Rice v. State, 38 S.W. 801, 802 (Tex. 1897); Succession of Kneipp, 134 So. 376, 378 (La. 1931); State ex rel. Bucher v. Brower, 21 Ohio Op. 208 (Ohio 1941); Wilty v. Jefferson Parish, 157 So.2d 718, 727 (La. 1963) (Sanders, J., concurring). Cases tending to support the Lipsky theory are Chapman v. Phoenix National Bank, 85 N.Y. 437, 449 (N.Y. 1881); In Re Kayaloff, 9 F. Supp. 176 (S.D.N.Y. 1934); Freeman v. Hawkins, 14 S.W. 364, 365 (Tex. 1890); Bacon v. Boston Elevated Ry. Co., 152 N.E. 35, 36 (Mass. 1926); Wilty v. Jefferson Parish, supra, at 723-24 (Hamlin, J.); Forbush v. Wallace, supra, at 221-22. The three-judge District Court in Forbush upheld the constitutionality of the Alabama regulation, based on Alabama case law, that a married woman's legal surname is that of her husband, requiring that she use her husband's surname in obtaining a driver's license.

WOODLEY, Judge. It is again insisted that under the rule stated and applied in Anderson v. State, 132 Tex.Cr.R. 37, 105 S.W.2d 258; Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308; Rice v. State, 37 Tex.Cr.R. 36, 38 S.W. 801; and U.S. v. Cook, 17 Wall. 168, 21 L.Ed. 538, the information is fatally defective in failing to negative that the barbiturate was a compound, mixture or preparation such as declared to be without the act in Sec. 4 thereof; and in failing to negative the premise that the barbiturate may have been delivered by a pharmacist or practitioner under the conditions and in the manner permitted by Sec. 3(a)(1) and (2) of the statute.

The indictment is exactly like that found in Dudley v. State, 37 Tex.Crim. Rep., 40 S.W. 269, which was held fatally defective. To the same effect is Edwards v. State, 37 Tex.Crim. Rep., 39 S.W. 368; Rice v. State, 37 Tex. Crim. 36, 38 S.W. 801; Sproulen v. State, 97 Tex. Crim. 561, 262 S.W. 757. Under the defective indictment only one order can follow. The judgment is reversed and the prosecution ordered dismissed.

If the court entertains any reasonable doubt as to what it is intended by the legislature to prohibit, such doubt must be resolved in favor of defendant: G.C. S.F. Ry. Co. v. Dwyer, 84 Tex. 200; U.S. v. Brewer, 139 U.S., ___, 35 L.Ed., 193; Harrison v. Vose, 9 Howard, 13 L.Ed., p. 182; The Enterprise, 1 Paine C.C., 32 Federal Case, No. 4499. Exceptions concerned with definition of offense must be negatived: State v. Duke, 42 Tex. 459-460; United States v. Cook, 17 Wallace, 173, 21 L.Ed., 540; Williamson v. State, 41 Texas Cr., 461, 55 S.W. 568-570; Rice v. State, 37 Texas Cr., 36, 38 S.W. 801-802. A penal statute must be plead with the strictness of an indictment: K.C.M. O. Ry. v. Cole, 149 S.W. 753; State v. Williams, 14 Tex. 98; State v. Williams, 8 Tex. 255 [ 8 Tex. 255]; 16 A. E. Encyc. Pl. Pr., p. 276, note 1.

The opinion states the case. R.W. Haynie and C.L. Hailey, for appellant. — On question of insufficiency of the indictment: Williams v. State, 37 Tex. Crim. 238, 39 S.W. Rep., 664; Rice v. State, 37 Tex. Crim. 36, 38 S.W. Rep., 801; Hewett v. State, 25 Tex. 722; State v. Clayton, 43 Tex. 410; State v. Duke, 42 Tex. 455. John A. Mobley, Assistant Attorney-General, for the State. RAMSEY, JUDGE.