
    BIGLIBEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1912.)
    1. Witnesses (§ 344) — Evidence—Reputa-, TION Off PKOSECUTBIX.
    Accused, on a trial for rape on a female under the age of 15 years, may, to affect her credibility, show that prior to the time of the alleged offense she had been an inmate of houses of ill fame, but he may not prove, as affecting her credibility, isolated or independent acts of immorality.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.]
    2. Witnesses (§ 344) — Evidence—Reputation Off PKOSECUTBIX.
    Though accused, on a trial for rape on a female under the age of 15 years, showed on the cross-examination of prosecutrix that her act with him was the first act committed, he could not impeach her by showing her prior individual and isolated acts of immorality.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.]
    3. Cbiminae Law (§§ 417, 444) — Hearsay Evidence — Age—Family Recobds.
    Where an entry of date of birth is made in a family Bible at or about the time of birth, and this fact is proven, the entry is admissible to prove the date of birth, but when the father is living and in attendance in court, and the entry is shown to be in his handwriting, he must be called to testify that the entry was made contemporaneous with the event.
    TEd. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 050-957,1028; Dec. Dig. §§ 417, 444.]
    4. Criminal Law (§ 1120) — Evidence—Review — Record.
    The sustaining of objections to questions propounded is not reviewable on appeal, where the answers 'to the questions are not stated in the record and the record does not state what could have been proven.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    John Bigliben was convicted of crime, and he appeals.
    Reversed and remanded.
    Pope & Taylor and H. R. Sutherland, all of Corpus Christi, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & P.ep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of rape on Maud Elaine Sargent, a girl alleged to have been under 15 years of age, and his punishment assessed at five years’ confinement in the penitentiary.

In this case it is shown by several bills of exception that the prosecuting witness, Miss Maud Sargent, testified to an act of intercourse with appellant on the 25th day of December, 1910, and that appellant while cross-examining her asked several questions, and she answered as stated; the questions and answers being: “Q. You told Mrs. Thomas how you happened to do wrong in the first instance? Did you tell her that? A. Yes, sir. Q. That you told Mrs. Thomas that the first time that you -had carnal intercourse with a person was with this defendant? A. Yes, sir. Q. Was that true 7 A. Yes, sir. Q. How came you to tell Mrs. Thomas? A. Because she asked me how I came — how it was that I came to have to go to such a place as the rescue home. Q. How came you to have to go to such a place as the rescue home, and you told her of this one particular act of intercourse, was that it? A. I told her how I came to make the mistake the first time; yes, sir. Q. Did you state to Mrs. Thomas that the first time that you had carnal intercourse with a person was with this defendant? A. Yes, sir. Q. Was that true? A. Yes, sir.” Several questions along this line were asked the witness by appellant’s counsel, and he then asked her, “Do you know if you swear a lie you can be sent to the penitentiary?” and she answered that she did, when the question was asked, “Now, do you mean to swear that on the 25th day of December, 1910, was the first time you ever had carnal intercourse with any man?” when the district attorney objected on the ground that same was immaterial and irrelevant, which objection was sustained by the court. Appellant’s counsel stated to the • court that’ the witness had testified to an act of intercourse with the defendant on December 25, 1910, and had said this was the first act of intercourse she ever had with any man, and he was asking these questions with the purpose and expectation of proving that prior to December 25, 1910, she had visited houses of prostitution belonging to Ida Mitchell, Hannah Brandt, and Ida Murray, and while in those houses she had had intercourse with a dozen different men, naming them, all prior to December 25, 1910, when the state’s counsel moved the court to exclude that portion of the witness’ testimony in which she stated this was the first act of intercourse, and that she had so told Mrs. Thomas, which motion was by the court sustained. Appellant, when offering his testimony, tendered testimony to show that the prosecuting witness had been an inmate of these three houses of prostitution, and while in those houses had submitted to acts of intercourse with Will Lingenfeldt and 24 others, naming each of them, all prior to the time she stated she had had this act of intercourse with appellant. The court refused to permit appellant to ask her if she had had intercourse with these men or either of them in these houses of prostitution prior to December 25th, and refused to permit the defendant to offer any proof that she had been an inmate of these houses prior to that time, or had had intercourse with these men, on the ground that he had stricken from the record all testimony that would show that the act of intercourse .with appellant was the first act of intercourse.

Appellant in a number of bills excepted to the action of the court in striking this testimony from the record, and in excluding this testimony, specially excepting on the ground that, while the court had stricken from the record the testimony of the witness that this was the first act of intercourse, yet the court had permitted to remain in the record as evidence before the jury the testimony that at the time of this intercourse “she bled and it pained her, and that she almost fainted at the time.” In this case the prosecuting witness testifies positively to the act of intercourse with appellant on December 25th, while appellant positively denies having had intercourse with her on that date, or at any other time. Of course, if the prosecuting witness was under 15 years of age, it would be immaterial whether or not she had had intercourse with any other man, for if appellant had intercourse with her he would be guilty under the statute; yet if a witness has become so morally depraved as to become an inmate of a public house of prostitution, and offers her body for sale publicly, we think testimony showing that fact ought to be admitted as affecting her credit as a witness in this character of case. And when the defendant offered testimony that, prior to the time she says she had this act of intercourse with appellant, she was an inmate of a house of prostitution in Corpus Christi, receiving men and selling her person to them, this conduct showed such a depraved state of morals as to render such testimony admissible. We have always held that, when a person has been charged with or convicted of any offense which would involve moral turpitude, it may be shown to affect their credit. In this case a girl claiming to be under 15 years of age says she had an act of intercourse with a certain man. He denies it, and offers to show, as affecting her credit as a witness, that she was an inmate of a house of prostitution immediately prior to that alleged act, and he ought to have been permitted to introduce evidence of that fact; the court, of course, instructing the jury the purpose for which said testimony was admitted. Of course, it is not intended to hold that other isolated acts of intercourse may be shown as affecting her credit, or for any other purpose; it is only where by her whole conduct and course in life she manifests that low state of morals which would place her in the category of what is known as a common prostitute, that it becomes admissible. McGrath v. State, 35 Tex. Cr. B. 415, 34 S. W. 127, 941.

The court did not err in refusing to permit appellant to prove individual acts of intercourse, and, if her testimony that the intercourse with appellant was the first act had not been stricken from the record, it would not have been permissible to impeach her on that point, as he had drawn it out on cross-examination, and it would be impeachment upon an issue that would furnish no defense, yet the fact that she was an inmate of a house of prostitution ought to have been admitted.

Another sharply contested issue in the case was the age of the prosecuting witness. She testified she would become 15 years old on January 11th, 17 days after the date on which she says the offense was committed. The defendant offered proof that she had told a number of people that she was 16 years of age at that time, and her appearance, etc., appears proven in the record. In rebuttal the state introduced in evidence what the prosecuting witness says was the family Bible with the date of her birth entered therein, as she says, in her father’s handwriting. The record discloses that her father was living, and in attendance on court, and the witness says she does not know when the entry was made by her father. When an entry of date of birth is made in a family Bible, at or about the time of birth, and this fact is proven, it is admissible to thus show the date of birth. But when the father is living and in attendance on court, and the entry is shown to be in his handwriting, and no testimony is offered as to when he made the entry in the Bible, it should not be admitted; but, if it is desired to prove that fact, let him be called, or some witness called who can testify that the entry was made contemporaneous with the event. An entry of this character shown to have been made at or about the date of birth is, if anything, stronger evidence than one’s memory.

There are a number of other questions presented, but we deem it unnecessary to discuss them. Those bills which attempt to complain' of the failure to permit them to show that the prosecuting witness and her father attempted to blackmail several people by stating, if they would pay so much money, prosecutrix and her father would leave the country, otherwise prosecutions would be instituted, are not in condition we can review them, for, while the questions propounded are shown, the answers to the quesT tions are not stated, nor is it stated what could have been proven.

The judgment is reversed, and the cause is remanded.  