
    WILLIAMS v. STATE.
    (No. 9692.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1926.)
    1. Rape <&wkey;43(2) — Testimony that prosecutrix in rape case had given birth to a child held not error.
    In prosecution for statutory rape, admission of testimony that prosecutrix had given birth to a child held not error.
    2. Criminal law <&wkey;l 169(2) — In prosecution for rape, admission of testimony that pros-ecutrix’s mother was dead held not prejudicial, fact otherwise shown.
    In prosecution for rape, admission of pros-ecutrix’s testimony that her mother was dead held not prejudicial, her father having already so testified without objection.
    3. Criminal law t&wkey;369(8) — In prosecution for rape, admission of testimony of prosecutrix as to intercourse with defendant subsequent to act charged held erroneous.
    In prosecution for statutory rape, prosecu-trix’s testimony to separate, disconnected acts of intercourse with defendant subsequent to one forming basis of prosecution held improperly admitted.
    4. Rape &wkey;>39 — In prosecution for statutory rape by consent, evidence of prior attempts by defendant to induce prosecutrix to submit held admissible.
    In prosecution for statutory rape, testimony of prior attempts by defendant to induce prosecutrix to submit to him held admissible.
    5. Rape <&wkey;38(2) — In prosecution for statutory rape, denial of cross-examination of prosecutrix concerning testimony tending to show rape by force held error.
    In prosecution for statutory rape, refusal to permit defendant to cross-examine prosecu-trix as to testimony tending to show rape by force held erroneous.
    0. Rape <&wkey;36 — Defendant has burden of proof of prosecutrix’s previous unchaste character in prosecution for statutory rape.
    In prosecution for rape by consent, defendant has burden of proof of prosecutrix’s previous unchaste character asserted as a defense.
    7. Rape <&wkey;40(5) — In prosecution for statutory rape, evidence of prosecutrix’s relations with other men soon after alleged offense held admissible on question of prior chastity.
    In prosecution for statutory rape, evidence that soon after alleged offense prosecutrix was promiscuously engaged with other men than defendant held admissible on issue of her prior chastity.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    Clifton' Williams was convicted of rape, and he appeals.
    Reversed and remanded.
    Thompson & McWhirter, of Greenville, and Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Conviction in district court of Hunt county of rape; punishment 15 years in the penitentiary.

The facts in this case, from the state’s standpoint, showed that appellant kept company with prosecutrix, a girl 16 years of age, for cfuite a wliile, and that after several ineffectual attempts to have carnal knowledge of her he succeeded in accomplishing his purpose. There followed a continuation of such conduct, resulting finally in the birth of a child. Appellant was prosecuted and convicted, with the above result.

There appears nothing in appellant’s complaint directed at the admission of testimony to the effect that prosecutrix had given birth to a child. Such fact furnished indisputable proof that she had been with some man. Further complaint of the reception of her testimony that her mother was dead is of no avail to appellant, in view of the fact that the father of the girl had already testified without objection to the death of his wife.

Several bills present exceptions to tes-' timony of prosecutrix as to separate, disconnected acts of intercourse with appellant subsequent to the one which forms the basis of this prosecution. As far as we can see such testimony served no useful purpose in solving any disputed issue in this case, and that it was of probable hurt to the accused may be reflected in the 15-year'penalty given him, this being a case of rape by consent, and so submitted in the charge of the court. Rosamond v. State, 94 Tex. Cr. R. 8, 249 S. W. 468; Id., 99 Tex. Cr. R. 569, 263 S. W. 298. We think the testimony of the subsequent acts wrongfully received.

We aVe not in accord with appellant’s objection to testimony of attempts on his part to induce prosecutrix to submit to him prior to the time of accomplishment. Such proof would seem to support the theory of actual later intercourse. Clardy v. State, 66 Tex. Cr. R. 351, 147 S. W. 568.

The allegations of the indictment would support a conviction for rape by force as well as one with consent. The testimony of the prosecutrix tends strongly to show rape by force. Appellant sought to cross-examine her upon those facts sworn to as showing rape by force, but, upon objection by the state, was not allowed to do this. The court’s qualifications to the bills presenting these exceptions make it appear that in the opinion of the learned trial judge it was material and relevant for the state to show force, but immaterial and irrelevant for the accused to combat such proof. Certainly proof of force adds an aggravating element to this offense which would tend to increase the punishment (Lusty v. State, 97 Tex. Cr. R. 170, 261 S. W. 775), and the valuable right of cross-examination in this regard should not have been refused. Same might have served to remove the question of force from the jury’s consideration.

The main contention of the accused was ' that prosecutrix, as stated, a girl 16 years of age at the time of the alleged rape, consented to said act, and, further, that she was of unchaste character at said time. The court below told the jury in the charge that if in fact they believed she was not a chaste female at the time of such act, or they had a reasonable doubt on this proposition, to acquit. Appellant offered testimony to show .lewdness on the part of prosecutrix with others than himself after the date of the alleged rape, but same was rejected. The issue joined being whether the girl was chaste, and the burden of supporting this being upon appellant, he was entitled to all legitimate testimony shedding light on the issue. Beyond question proof of prior acts of intercourse with others would establish the contention of unehastity. It seems that subsequent acts, when reasonably near the date of the alleged offense, would have the same effect. A woman in love with a man and expecting to marry him, as prosecutrix testified was the case here, might for such reasons be inclined not to resist his advances and efforts, and it would not be entirely unreasonable to thus explain her conduct consistent with chastity up to the time of such act, .but if she is found at once or soon thereafter engaged promiscuously with other men, the fortification of prior chastity would be thus attacked and might be entirely overthrown. In Davis v. State, 36 Tex. Cr. R. 548, 38 S. W. 174, evidence of acts of intercourse with others than the accused, occurring subsequent to an alleged seduction, were held admissible as shedding light upon the character for chastity of the injured female at the time of the occurrence. This case is approved in Rodes v. State, 38 Tex. Cr. R. 328, 42 S. W. 990, and the principle adhered to in Creighton v. State, 41 Tex. Cr. R. 101, 51 S. W. 910, and is expressly upheld in Polk v. State, 91 Tex. Cr. R. 354, 238 S. W. 934. The bad reputation of prosecutrix for chastity acquired after the alleged seduction was held by us in the case last above mentioned not to- require a reversal but we said in that opinion:

“The same objection would not be tenable where specific acts of unchastity subsequent to the alleged seduction was sought to be shown.”

Our Legislature in 1918 having specifically declared that in consent cases of rape when the female is over 15 years of age and under 18 proof of previous unchaste character would be a defense, this brought into such cases a defensive issue not theretofore involved — i. e., the unchastity of the female. Same has always been an issue in seduction cases. Under the present law of rape and in a case on facts such as those before us, we see no reason for applying one rule of evidence on the issue of the chastity of the injured female, and on exactly the same issue apply a different rule in seduction cases. The issue of the chastity of the injured female at the time of the occurrence, if attacked by a certain character of proof in the one case, certainly could be attacked by the same character of proof in the other. The court erred in rejecting this testimony.

Complaints of argument made by the district attorney and of the refusal of a new trial will not be discussed in view of our conclusions in this case.

For the errors mentioned, the judgment will be reversed and the cause remanded. 
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