
    ULMER v. STATE.
    (No. 10598.)
    (Court of Criminal Appeals of Texas.
    March 16, 1927.)
    il. Criminal law i@=5369(8) — Testimony that defendant had been in penitentiary, and was father of daughter’s child, held inadmissible in rape case.
    In prosecution for rape of daughter under age of 15, testimony of another unmarried ■daughter that defendant had been in penitentiary and was father of her child held inadmissible as collateral transaction and offense.
    
      2. Criminal law <§=>1169(1) — Prejudicial testimony, introduced by prosecution, creating incurable error, held not rendered less harmful because unsolicited.
    Testimony prejudicial to defendant, creating ■error that cannot be cured, held not rendered less harmful because unsolicited and not responsive to questions, since, being introduced by prosecution, prosecution is entirely responsible for its presence in record.
    3. Witnesses <§=^342 — Where prosecutrix testifies in rape case, evidence that her reputation .for truth and veráeity is bad is admissible.
    Where pfosecutrix testifies in prosecution for rape, evidence that her general, reputation for truth and veracity in community where she lives is bad is admissible.
    Commissioners’ Decision.
    Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
    W. P. Ulmer was convicted of rape, and be appeals.
    Reversed and remanded.
    T. A. Bledsoe, of Abilene, O. P. Obastain, of Hamlin, and Lon A. Brooks, of Anson, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for tbe State.
   BETHEA, J.

Tbe appellant was convicted of rape, and bis punishment assessed at 15 years in tbe penitentiary.

Tbe subject of tbe alleged rape was Adell Ulmer, daughter of tbe appellant, a girl under the age of 15 years. The alleged rape occurred in tbe home of tbe appellant during tbe absence of the stepmother of tbe pros-ecutrix.

Bills of exception Nos. 1, 2, 3, 4, and 5 present no error.

Bill of exception No. 8 complains at tbe action of tbe trial court in permitting tbe witness Marie Ulmer, sister of tbe prosecu-trix, to testify in behalf of tbe state on direct examination as follows:

“Question: How long had you been living with your father at. that time? Answer: All my life except when he was in the penitentiary.” .

Appellant objected to that part of tbe witness’ testimony to tbe effect that her father bad been in tbe penitentiary, for the reason that tbe foregoing answer was not in response to tbe question 'propounded by tbe district attorney and could only have been madts by the witness for tbe purpose of getting before tbe jury illegal and incompetent testimony, which testimony was highly prejudicial and injurious to tbe rights of the appellant, and that by this means the’ prosecution was getting before tbe jury an extraneous offense for which tbe appellant bad theretofore been convicted and served a sentence in tbe penitentiary.

Appellant further says, as a- ground of objection, that, although tbe court sustained his objection to that part of tbe testimony hereinbefore set out and instructed tbe jury not to consider tbe same, yet said answer could only have a very harmful and damaging effect upon appellant.

This bill of exception will be considered in connection with bill of exception No. 9, which complains of the action of tbe trial court in permitting Marie Ulmer, while on tbe witness stand testifying in behalf of tbe state, to testify as follows: “Question: Were you married at that time?” Like .a flash tbe witness answered: “No, sir; it was my father’s baby.”

The appellant objected to both the question and answer, on the ground that same was for the purpose of getting before the jury-illegal and incompetent testimony — testimony which was highly prejudicial, harmful, and injurious to the appellant — and that it was introduced for the purpose of inflaming the minds of the jury.

The facts disclose that, at the time of the alleged rape, the witness Marie Ulmer, a girl of 18 years of age, was living in the home of appellant, her father; that she was the mother of a small baby; that on the night of the alleged rape she and prosecutrix were sleeping in the same room in which appellant was sleeping; that the' prosecutrix slept in the same bed with appellant; and that witness Marie Ulmer slept with her baby in another bed in the same room.

To permit the state to prove by the witness Marie Ulmer that her father had been in the penitentiary, and follow this by further'showing that she had never been married and that appellant was the father of her baby, would certainly be admitting testimony of a most damaging character to the appellant. It tended to prove the appellant guilty of the offense of incest on his daughter Marie Ulmer. Its receipt was opposed to the welllmown and often applied rule of evidence which excludes collateral offenses or transactions not admitted under some exceptions to the rule. The fact that the testimony came unsolicited and not in response to the questions propounded, and was entirely volunteered by the witness, did not render it less harmful to the appellant. It was introduced by the prosecution, and the prosecution is entirely responsible for its presence in the record, and the error is one that cannot be cured. Haygood v. State, 104 Tex. Cr. R. 429, 284 S. W. 547.

Bill of exception No. 11 complains of the action of the tidal court in not permitting the appellant to prove by a number of witnesses that the general reputation of the prosecutrix for truth and veracity in the community in which she lived was bad. This bill, in its present form, presents no error, but, in view of another trial, if prosecutrix testifies, this evidence will clearly be admissible.

It will not be necessary to discuss the questions raised in the other bills appearing in the record, for the reason that said questions will probably not arise on another trial of this case.

For the error discussed, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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