
    HAGOOD v. STATE.
    (No. 9489.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1925.
    State’s Rehearing Denied June 9, 1926.)
    1. Criminal law <@=»369(8) — Testimony by pros-ecutrix’s sister that accused attempted to rape her, held inadmissible and prejudicial, though admitted through mistake of trial judge in thinking prosecutrix was testifying.
    In prosecution for rape, testimony by sister of prosecutrix that accused attempted to rape her on same day as alleged offense against pros-ecutrix held inadmissible and prejudicial, though admitted on mistaken impression of trial judge that prosecutrix was testifying.
    2. Criminal law <&wkey;>899 — Error in receiving testimony that accused attempted to rape sister of prosecutrix was not waived by defendant’s counsel expressing opinion that error was incurable, for which reason trial judge did not limit consideration thereof.
    Error in receiving testimony of sister of prosecutrix that accused attempted to rape her was not waived by counsel for defendant expressing opinion that error was incurable, for which reason trial judge did not limit consideration thereof in his charge.
    <gr^>For other cases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
    Eugene Hagood was convicted of rape, and lie appeals.
    Reversed and remanded.
    Stinson, Coombes & Brooks, of Abilene, and Bon A. Brooks, of Anson, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 10 years.

- The subject *of the rape was Esther Tabor, a girl under 15 years of age. Appellant visited the home of the prosecutrix, and she and her older sister went riding with the appellant in his automobile. After proceeding some distance, a young man by the name of Jones got into the car. It seems that Jones hid in the car until they had passed the home of the brother of the prosecutrix, after which he and the prosecutrix sat. together on the back seat of the car. The car was stopped on a creek, and the parties took a walk along the bank of the creek. They afterwards'got back in the ear and went riding, during which the prosecutrix kissed the appellant. After dark, the car was stopped again. According to her testimony, she had intercourse with the appellant with her consent.

Appellant testified and denied that he had intercourse with the prosecutrix. It seems from the testimony that Jones, Lena Tabor, Esther Tabor, and the appellant spent the larger portion of the day and a part of the night together. According to Esther Tabor, she and the appellant had intercourse late in the afternoon, after dark. It was shown by the state’s testimony, and by all the testimony, that during the afternoon the parties separated, and, while so separated, Lena Tabor and the appellant took a walk in company with each other. This was at a time when Jones and the prosecutrix, Esther Tabor, were walking in a different part of the woods.

Lena Tabor was permitted to testify as follows :

“While me and Hagood was there, and after we got out of the car and walked down the creek and out of sight of the car, and had remained down there a good while, Hagood tried to have intercourse with me, and he kept on, and I told him ‘No,’ he couldn’t; that I was not going to do any such thing.” 1

Appropriate objections were urged against this testimony, and, from the bill of exceptions, it appears to have been improperly received. In qualifying the bill of exceptions to its admission in evidence, the trial judge said that at the time he admitted the testimony he was under the impression that the witness who gave the testimony was the pros-* eeutrix in the case; that, when he went to prepare his charge, he discovered his mistake; that no mention had been made to strike out the testimony; and, that being doubtful as to its admissibility, he told the appellant’s counsel that he would instruct the jury in his main charge that the testimony should not be considered. From the qualification we take the following quotation:

“The counsel for defendant then stated to the court that the injury had already been done, and that to withdraw the testimony or limit it in any way would only serve to emphasize the same. The court replied, ‘Perhaps so.’ For this reason the testimony was not withdrawn or limited by the court; that' is, because the defendant objected to the court doing so.”

If the record is understood by this court, the impropriety of receiving the testimony mentioned is clear. It tended to prove against the accused an assault to rape the sister of the prosecutrix, a girl also under the age of consent. Its receipt was opposed to the well-known and often applied rule of evidence, excluding collateral offenses or transactions not admissible under some exceptions to the rule. See Underhill’s Cfim. Evidence (3d Ed.) § 150. The fact that the testimony came in through a mistake of the trial judge did not render it less harmful to tile appellant. Prompt objection to its introduction was interposed and exception reserved to its receipt. The responsibility for its presence in tbe record was upon the prosecution, and was not shifted to the appellant. If the trial judge thought it could be withdrawn, it was within his power to instruct the jury to disregard it. If he had pursued this policy, and appellant Jiad excepted to the instruction, • a different question might arise. The reply of counsel to the court, as indicated by the explanation to the bill of exceptions, doubtless reflected the opinion of counsel, to which the court, on request, was entitled. In expressing his opinion that the harm was inc arable, the error in receiving the testimony was not waived.

The j udgment is reversed and the cause remanded.

On Motion for Rehearing.

HAWKINS, J.

In view of the state’s motion for rehearing, we have again examined the questions discussed in our original opinion. In our judgment proper disposition has been made of them.

The motion for rehearing is overruled..  