
    SMITH v. STATE.
    (No. 4170.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Criminal Law <5&wkey;366(4) — Evidence—Res Gestje — Admissibility.
    In a prosecution for rape, statement of a witness that the prosecuting witness had come running to her house and was about to cry, and stated that accused “throwed me on the bed and got on top of me,” was admissible if brought within the rule governing res gestae statements.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 819; Dec. Dig. <&wkey;366(4).]
    2. Rape <&wkey;38(3), 48(1) — Evidence—Admissibility.
    The mother of prosecutrix could state that prosecutrix had made complaint upon which she had acted by sending for a doctor and that she had examined the clothes of prosecutrix and found blood on them.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. §§ 48, 67; Dec. Dig. &wkey;38(3), 48(1).]
    3. Rape <&wkey;48(2) — Evidence—Admissibility.
    Testimony of mother of prosecutrix, who was away from home, as to a detailed statement made by the prosecutrix to her at a later time, was inadmissible.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. § 68; Dec. Dig. ¡&wkey;>48(2).]
    4. Rape &wkey;>44 — Pleading—Issues.
    The state could prove that accused was married to another and different woman, since it was necessary to be shown that he was not married to the prosecuting witness.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. § 63; Dec. Dig. <&wkey;>44.]
    5. Rape <&wkey;38(l) — Pleading—Issues.
    The state was improperly allowed to prove that the wife of the accused had been sent to the penitentiary and that he had lived with his wife only three days after she had been released, his treatment of his wife not being an issue.
    [Ed. Note. — Por other cases, see Rape, Cent. Dig. §§ 48, 50; Dec. Dig. &wkey;>38(l).]
    6. Criminal Law <&wkey;374 — Evidence—Admissibility.
    Testimony that the accused had been convicted 16 years before, when he was 16 years of age, and remained in the penitentiary less than 2 years, should have been excluded.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 835; Dec. Dig. &wkey;o374J
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Walker Smith was convicted of rape, and he appeals.
    Reversed and remanded.
    King & Seale, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape, and his punishment assessed at ten years’ confinement in the state penitentiary.

Appellant asks for a reversal of the case on account of the court refusing to continue the case on account of the absence of the witness' John Pleasants. As qualified by tifie court, we would not feel authorized to reverse the case on that ground; but, as the case will be reversed on other grounds, this ground need not be discussed.

Golly Booker, a negro girl under 15 years of age, testified to appellant picking her up, laying her on the bed, and having an act of intercourse with her without her consent. She further testified to telling her aunt Fannie Durst about what had occurred, and the court permitted Fannie-Durst to testify, over appellant’s objection:

“Golly came running over to my house, and was just about to cry. She said: ‘Aunt Fannie, Mr. Walker come over to our house and throwed me down on the bed and got on top of me.’ ”

Appellant insists that, even if this was said under circumstances rendering it res gestee of the transaction, the testimony was inadmissible; he contending that in rape cases such res gestee testimony is not admissible. In this contention we do not agree with appellant. Res gestee is the event speaking, and, if the facts and circumstances are such on another trial as to bring this within the rule governing res gestee statements, the court will admit the testimony of the witness Fannie Durst. However, appellant is correct in his contention that the testimony of the mother is inadmissible. Mallie Green, the mother, was away from home cooking. The girl had seen her aunt and had finished cooking dinner before going to her mother. The statement to the mother would not be the event speaking, but a detailed report of what occurred some time before. Her mother could say that she came to her and made complaint, and she, acting on the complaint, sent Dr. Deal to see the girl; and she would also be permitted to testify that she examined her clothes and found blood on them; but she should not be permitted to testify what the girl told her, nor that she complained of Walker Smith, appellant. Judge Moore, in Pefferling v. State, 40 Tex. 492, stated the rule that has always prevailed in our Supreme Court and in this court in criminal eases:

“It has therefore been universally held that recent complaint by the person injured, her state and appearance, marks of violence, and the condition of her dress, shortly after the alleged occurrence, may be proved as original evidence. * * * It is, we think, well established, by reason as well as the great weight of authority, that proof of the particulars of the complaint, and the detailed statement of the alleged facts and circumstances connected with it, as was permitted in this case in the court below, cannot be admitted as original evidence to prove the truth of the statements testified to by the injured party, or to establish the charge made against the prisoner.”

There would have been no error in permitting the state to prove that appellant was married to another and different woman, as it was necessary to be shown that he was not married to the prosecuting witness. But the court should not have permitted the state to prove that appellant’s wife had been sent to the penitentiary, and that appellant had lived with his wife only three days after she had b.een released from the penitentiary. Whether he had treated his wife rightfully or wrongfully was not an issue in this case.

The state should not have been permitted to prove that appellant had been sent to the penitentiary some 16 years prior to the time of this trial, as he remained in the penitentiary less than 2 years and had been discharged from the penitentiary some 14 years prior to this trial. When it was ascertained that his conviction took place some 16 years ago, when he was only a 16 year old boy, appellant’s motion to exclude the testimony should have been sustained.

There are other matters complained of, but they will not likely arise on another trial.

The judgment is reversed, and the cause is remanded. 
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