
    ROSAMOND v. STATE.
    (No. 8014.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.)
    1. Criminal law <@=3369(8) — Testimony of other and separate acts of intercourse ordinarily inadmissible.
    Testimony of other and separate acts of intercourse between accused and prosecutrix 'save one relied upon by state is ordinarily inadmissible.
    2. Criminal law <@c=>369(8) — State may not show condition indicating prior intercourse and then show defendant responsible therefor.
    , State may not prove physical condition of prosecutrix which reflects prior acts of intercourse by her and then introduce testimony of prior carnal acts as showing defendant was responsible for the prior condition so found.
    3. Criminal law <@=3369(8) — Testimony of physician and prosecutrix establishing intercourse prior to act charged between defendant and prosecutrix held inadmissible.
    In prosecution for rape, testimony of state’s witness, a physician, that prosecutrix’s physical condition indicated intercourse by her prior to act charged, and would not have resulted solely from that act, and testimony by prose-cutrix in rebuttal to effect that defendant was responsible for such condition, helé inadmissible and violative of rule against proof of extraneous offenses.
    4. Criminal law <§=l 158(3) — Court’s finding on misconduct of jury charge rarely disturbed.
    Where, on motion for new trial, court has heard conflicting evidence as to misconduct of jury, as arrival at verdict by lot, and settled such question, its conclusion will rarely be disturbed.
    5.Witnesses <@=>240(3) — Question not leading merely because capable of being answered by . “Yes” or “No.”
    A question to be leading must suggest or indicate desired or expected answer, and is not leading merely because it may be answered by “Yes” or “No.”
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    J. O. Rosamond was convicted of statutory rape, and he appeals.
    Reversed, and cause remanded.
    See, also, 94 Tex. Cr. R. 8, 249 S. W. 468.
    Stanford, Sanders & West and IR. M. Lively, all of Canton, and Shields & Anthony, of Grand Saline, for appellant.
    Tom Garrard, State’s Atty., and Grover C.,, Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.,

Appellant was convicted in the district court of Van Zandt county of rape, and his punishment fixed at nine years in the penitentiary.

Appellant was convicted of rape upon his niece, a girl under the áge of consent. The state introduced her as a witness, and she testified fully to an occurrence on the date laid in the indictment. She said it took place in her uncle’s home, and that she was in a big chair, and he got down on the floor before her and accomplished the carnal act. She said that her brother came in and caught them. The state introduced the brother of prosecutrix, who testified that on that day he was working for his uncle, and hurt his hand; that upon going to the house and into the room he saw prosecutrix in a big chair and appellant on the floor before her. The state also introduced Dr. Cosby, who testified that some little time after the date alleged in the indictment prosecutrix came to him for examination in reference to her pregnancy. He examined ther, and testified she was not pregnant, but did testify that she had had intercourse with some one. At this point the state rested its case in chief. Appellant then introduced a large number of witnesses who testified to his good reputation as a peaceable, law-abiding citizen, and as a man of honorable conduct toward women. Many of these witnesses also testified that the reputation of prosecutrix for truth and veracity was bad. At this point appellant rested his defense.

The state then recalled Dr. Cosby, and he was asked the following question:

“In your judgment would one act of intercourse on or about the middle of August, 1921, and possibly intercourse with two smaller boys back three or four years before that, produce the condition you found?”

Over objection tbe witness was permitted to answer:

“No, I don’t think that would produce the condition.”

It is stated in bill of exceptions No. 8, complaining of this matter, that the purpose of . the state in introducing said testimony was to lay a predicate for the recall of prosecutrix and in order to furnish a reason for having her detail other and different acts of intercourse with appellant than the one relied on in this case. It is also stated in said bill that the state’s attorney and the learned trial court both knew before Dr. Cosby was recalled that prosecutrix had testified already that (other parties than appellant had had intercourse with her before the time the doctor examined her, and in support of this proposition it is further set out in said bill that prosecutrix had testified upon another trial that her father had had intercourse with her, and that the defense had sought to prove this fact by prosecutrix while a witness in this case, to which the state had objected, and the objection was sustained. This bill of exceptions is approved without qualification, and the matters therein stated must be, therefore, taken as truel

The testimony of other and separate acts of intercourse between the accused and the prosecutrix, save the one relied on by the state, would seem ordinarily to be- inadmissible except when such testimony tends to solve some controverted issue in the case, or is brought within some exception tp the rule which rejects proof of other and discpnnected offenses. Ry another bill of exceptions it is made -to appear that, after Dr. Cosby was permitted to testify as complained of, the state brought prosecutrix back- to the witness stand and by her proved two other acts of intercourse with appellant at times different from that laid in the indictment in this ease. This proof was objected to as being a violation of the rule rejecting separate and disconnected offenses, and as not in rebuttal, as explaining no material fact in issue, and as not corroborative of the prosecutrix, etc.

When the state introduces proof of the soreness, irritation or injury of the- private parts of an alleged injured female in a case of assault or rape as corroborative of its claim of án assault, there is authority for the position that the defense may prove prior carnal acts with other persons, or even with the accused, to rebut the probative force of such testimony; but we know of no case holding that the state may prove that the private parts of the girl show a condition which reflects their carnal use prior to the act charged, and then justify the introduction of such testimony upon the proposition that this creates an issue upon which the state might rightfully introduce testimony showing that the accused is also responsible for the prior condition so found. Such proceeding smacks too much of the figurative man of straw, or the more recent smoke screen or camouflage behind which pretense is the really harmful attack. Proof of other disconnected crimes is most hurtful, for in the minds of all men arises an inference, following proof of other similar offenses, tfiat the accused is therefore likely to be guilty in the matter under investigation. From the wisdom and experience of the past rules have grown up' rejecting such proof save in case of well-understood exceptions. Authorities may be found holding such rules inapplicable if the case be one wherein the charge is an assault or rape upon a female under the age of consent, but the reasoning indulged in thesé cases seems equally favorable to the letting in of proof of other offenses generally in other transactions, and we have concluded that evidence of other acts is inadmissible except in some case coming within the rules laid down above. See Rosamond v. State (No. 7824) 263 S. W. 297, opinion handed down June 18, 1924, and authorities cited.

The testimony of Dr. Oosby should not have been allowed, and this is true of that of the prosecutrix when recalled in rebuttal. Nothing had been developed in the defensive testimony warranting the introduction of proof of the condition of the girl’s private parts, and such proof could not be made by the state as a predicate for the introduction of other illegal testimony.

When there is misconduct of the jury relied on for a new trial, such as that the verdict was arrived at by lot, and the evidence heard by the court below is conflicting the settlement of such question, as appears from the conclusion of the trial judge, will rarely be disturbed. Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 933, 137 Am. St. Rep. 930; Barber v. State, 64 Tex. Cr. R. 96, 142 S. W. 577; Testard v. State, 26 Tex. App. 260, 9 S. W. 888. The issue in such case would seem to be whether there was an agreement on the part of the jurors before they arrived at a quotient verdict that they had bound themselves to abide by such verdict, or was there a change, or subsequent agreement to tins effect after same was reached. Barton v. State, 34 Tex. Cr. R. 613, 31 S. W. 671; Barnard v. State, 87 Tex. Cr. R. 365, 221 S. W. 293.

Complaint is made of certain questions because leading. A question is not necessarily leading which may be answered “Tes” or “No.” It must further appear that it suggests or indicates in some way the desired or expected answer. We do not think the questions objected to in the instant case were leading.

Eor the admission of the testimony above mentioned the judgment of the trial court will be reversed, and the cause remanded. 
      ®=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     