
    Joe Totten v. The State.
    No. 9100.
    Delivered October 7, 1925.
    Assault to Rape — Companion Case — Reversed and Remanded.
    For the reasons stated in the companion case of Hall v. State, this day decided, practically all of the questions in that case arise in similar form in this case, it is our opinion that the judgment of the trial court in the instant case should be reversed, and the cause remanded.
    Appeal from the District Court of Taylor county. Tried below before the Hon. W. R Ely, Judge.
    Appeal from a conviction of an assault with intent to rape; penalty, two years in the State penitentiary.
    
      Ben L. Cox and Dallas Scarborough, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   BERRY, Judge.

The appellant was convicted in the district court of Taylor county for the offense of assault with intent to rape and his punishment assessed at confinement in the penitentiary for a term of two years.

This is a companion ease to that of Elmon Hall, this day decided and a sufficient statement of the facts to enable a proper disposition of this ease will be found in that case.

In this case the court also excluded testimony to the effect that the witness, Earl Darden, had given a worthless check for the hotel bill of the prosecutrix, and the court also excluded testimony of the witnesses, Miller and Gaurke, to the effect that he saw prosecutrix and Earl Darden in swimming about fourteen miles from Abilene on the clear fork of the Brazos River and that prosecutrix had her legs up around Darden’s body and that she had her arms around his neck and was hanging on to him, and that there is a big log in the water under a big tree and that they were both lying on that and that they were on top of the log face to face.several times.

For the reasons stated in the companion case of Hall v. State, we think the court erred in excluding this testimony from the consideration of the jury. Practically all of the questions discussed and decided in the case of Hall v. State, arise in similar form in this case, and our decision in that ease is decisive of each of them. On the authority of the ease of Hall v. State, this day decided, it is our opinion that the judgment of the trial court should be reversed and the cause remanded.

■Reversed and remanded.

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.  