
    WRIGHT v. STATE.
    (No. 11194.)
    Court of Criminal Appeals of Texas.
    Jan. 25, 1928.
    I.Rape <§=540(3) — In prosecution for rape of female over 15 years of age, exclusion of prosecutrix’s admissions indicating previous unchaste character held error (Pen. Code 1925, art. 1183).
    In prosecution for rape of prosecutrix over age of 16 years, exclusion of prosecutrix’s declarations and admissions indicating previous unchaste character for failure to lay predicate ifield error, since such evidence was admissible as original evidence under Pen. Code 1925, art. 1183, defining offense of rape.
    2.Criminal law, <§=5666(1) — Court cannot direct whom defendant accused' of rape shall place on stand to prove prosecutrix’s previous unchaste character.
    In prosecution for rape, court held not authorized to direct whom defendant would place on stand as witnesses to prove previous unchaste character of prosecutrix.
    3. Rape <§=36 — Defendant, accused of rape, has burden to raise reasonable doubt of pros-ecutrix’s chastity (Pen. Code 1925, art. 1183).
    In prosecution for rape, burden is on defendant, under Pen. Code 1925, art. 1183, to raise by evidence reasonable doubt of chastity of prosecutrix.
    4. Rape <§=551(1) — In prosecution for rape, doubt as to prosecutrix’s chastity may be raised! by circumstantial evidence.
    In prosecution for rape, defendant may raise reasonable doubt of chastity of prosecu-trix by proof of circumstances as well as by direct evidence.
    5. Rape <3=535(3) — Plea of not guilty of rape puts prosecutrix’s lack of chastity in issue.
    In prosecution for rape, plea of not guilty puts prosecutrix’s lack of chastity in issue.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    Jake Wright was convicted of rape, and he appeals.
    Reversed and remanded.
    See, also, 106 Tex. Cr. R. 651, 294 S. W. 592.
    J. G. Bishop, of Gorman, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, rape; penalty, ten years in the penitentiary.

The evidence shows that the female alleged to have been raped was over the age of 15 years. The transaction relied on fo'r a conviction, according to the evidence of prose-cutrix, happened on the 29th day of December, 1926, and her previous unchaste character was one of the issues raised by the evidence, made so by the testimony of a witness who testified to an act of intercourse with prosecutrix prior to December, 1926. The state offered much testimony to impeach this witness.

Appellant offered to make proof by the witness 'Grade Wright that she had known the prosecutrix for ■ about two years prior to that date and had many conversations with her prior to Christmas, 1926; that prosecutrix told her during these conversations that she loved the appellant; that she wished she could be around him all the time and she would poison appellant’s wife if appellant would run off with her; that in one of these conversations prior to Christmas, 1926, prosecutrix said she and one Erby Wright had gone out to -the car shed and stayed there a long time, and that they had also been out to the barn, and that she would never get Loyd Snyder and Dutch Hamilton paid with Dutch quarters (a Dutch quarter meaning a hug); and she further told the witness that she had promised to meet Loyd Snyder and Dutch Hamilton out halfway in the field that night and pay them for cutting wood, and that she had told the Snyder boys that she would give them anything that she had. All of these conversations happened prior to the commission of the alleged offense and were offered as circumstances to show the previous unchaste character of prosecutrix. The court refused to permit the introduction of this evidence and qualified appellant’s bill with the statement that no predicate had been laid for the introduction of this testimony while prosecu-trix was on the'witness stand, and that Pat Plamilton, Erby Wright, Dutch Hamilton, and Bill Snyder were attending court and could be placed on the stand by appellant. The court, of course, could not direct whom appellant would place upon the stand as witnesses. The trial court was of the opinion that this testimony was admissible only for iifipeaching purposes.

To this view we cannot assent. Article 1183, P. 0., defining the offense of “rape,” contains the following proviso:

“That if she is fifteen years of age or over the defendant may show in consent cases she was not of previous chaste character as a defense.”

It has been said that the burden is on the defendant under this statute to raise by evidence a reasonable doubt of the chastity of the female alleged to have been raped. Miller v. State, 96 Tex. Cr. R. 133, 256 S. W. 598; Simpson v. State, 93 Tex. Cr. R. 303, 247 S. W. 548. This may be done by proof of circumstances as well as by direct evidence. A plea of not guilty'puts her lack of chastity in issue. Certainly she would know of her own unchaste acts better than any other person, Her declarations and admissions throwing light upon this important and controlling issue ought to be evidence of strong probative force, and we perceive no reason for excluding it. It tends directly to prove the main issue, and therefore is receivable as original, though it is also admissible as impeaching evidence. Monroe v. State, 105 Tex. Cr. R. 543, 289 S. W. 686; Foreman v. State, 61 Tex. Cr. R. 56, 134 S. W. 229; Lusty v. State, 97 Tex. Cr. R. 167, 261 S. W. 775; Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 991. If admissible only as impeaching evidence, it could be considered by the jury only as affecting her credibility as a witness. The proffered evidence, though not of such strong probative force, became more important in view of the aforesaid impeachment of one of appellant’s main witnesses.

Other questions in the record not herein discussed are either not properly presented or are such as will not likely occur on another trial.

Because of the above-mentioned error, 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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