
    PERRETT v. STATE.
    (No. 3286.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Criminal Law (§ 1192) — Appeal—Law op Case.
    Where a confession, held inadmissible on a former appeal, was, upon a subsequent trial for the same offense, again admitted in evidence, the admission is error; the former judgment having settled the law as to the admissibility of the confession.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3231-3240, 3243; Dec. Dig. § 1192.*] ,
    2. Witnesses (§ 321) — Contbadiction—Sur-prise.
    Where on the first trial the female denied that accused raped her, the state cannot, upon 1 calling her on the second trial, introduce in evidence a written statement, in which she charged accused with the offense, for the state cannot put a witness on the stand knowing the testimony will be adverse in order to get in another statement which would be beneficial, and knowing the former testimony of the witness could not claim surprise.
    [Ed. Note. — Eor other cases, see Witnesses, Cent.^ Dig. §§ 1094, 1099, 1100'; Dec. Dig. ]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    G-. W. Perrett was convicted of rape, and he appeals.
    Reversed and remanded.
    Poulter & Johnson, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of rape. This is the second appeal; the first will be found reported in 162 S. W. 882.

The case was reversed before on account of the introduction of the confession of appellant. This confession was again admitted in evidence, and the matter is presented by proper bill of exceptions in this record. Here the question is presented practically as on the former appeal. For this reason the judgment will have to be reversed.

There is another question in the record which is reversible. The alleged injured girl was the daughter of appellant, and was placed on the stand on the previous trial as she was in this trial by the state and denied all acts of intercourse with her father. She testified the same, it seems, upon the former trial as we understand this record. The state then introduced her written statement, in which she, in substance, admitted the illicit intercourse. This was made prior to the finding of the indictment. She had testified nothing injurious to the state further than a simple denial of the acts of intercourse. Of this the state was fully aware when she was placed upon the stand as a witness; therefore surprise could not be urged. The state will not be permitted to put a witness on the stand, knowing that the testimony would be adverse, in order to get in another statement which would be beneficial to the state. If the state had expected her to swear to the intercourse, and she had denied it, then, perhaps, on the theory of surprise the prosecution might have introduced; this testimony by way of impeachment, or if the appellant had introduced her and had her testify, then she could be so impeached. There are two bills presenting this matter; one as to the written statement, and the other verbal testimony. This was error. The state could not get a statement of the girl incriminating her father before the jury in this manner.

The judgment is reversed, and the cause is remanded.  