
    McDUFF v. STATE.
    (No. 8605.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    1. Criminal law <§=5338(7).
    Permitting state to prove by prosecutrix in rape prosecution that defendant had a wife and children held error.
    2. Criminal law <§=>1 169(3) — Error in proving defendant in rape prosecution had a wife and children was not rendered harmless by defendant’s testimony that he was married.
    Error in permitting state, in rape prosecution, to prove by prosecutrix that defendant had a wife and children was not rendered harmless by defendant’s subsequent testimony to same effect; it having been offered after his objection to state’s testimony was overruled.
    3. Criminal law @=>1169(2).
    When improper testimony is admitted by state it is usually not cured because defendant offered other similar testimony to counteract it.
    4. Criminal law <§=>723(1) — Argument of district attorney on good fortune in trying rape case in court of justice held improper.
    Argument of district attorney in rape prosecution, commenting on fact that not all of rape cases got into court, and that it was fortunate that case was being tried in court, held improper.
    5. Criminal law <§=>729 — Comment in argument that rapist is so clearly guilty that summary ' punishment would have been justified held so prejudicial that withdrawal is impracticable.
    ' In rape prosecution, argument of state’s attorney that in his opinion defendant is so clearly guilty that prosecutrix’s father would have been justified in summarily punishing him is so prejudicial that withdrawal is impracticable.
    
      Commissioners’ Decision.
    Appeal from District Court, Dickens County; J. H. Milam, Judge.
    Bill McDuff was convicted of rape, and lie appeals.
    Reversed and remanded.
    G. E. Hamilton, of Matador, and Okas. D. Black, of Austin, for appellant.
    Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   BERRY, J.

The offense is rape, and the punishment is ten years in the penitentiary.

The state’s testimony is sufficient to show that the appellant had intercourse with the prosecutrix, and at the time of so doing she was under 18 years of age and was not the wife of appellant. The appellant defended on the ground that the prosecutrix was more than 15 years of age at the time of the alleged rape, anc^ that she was not a female of chaste character, and on this issue appellant presented much pertinent testimony.

Appellant complains' at the action of the court in permitting the state on direct examination of the prosecuting witness to prove by her that the appellant had a wife and two children. The authorities in this state seem to be clear to the effect that it is not permissible in a rape case to prove that an appellant is a married man' and that he has children. Smith v. State, 68 S. W. 995, 44 Tex. Cr. R. 137, 100 Am. St. Rep. 849; Smith v. State (Tex. Cr. App.) 74 S. W. 556; Wilkerson v. State, 131 S. W. 1108, 60 Tex. Cr. R. 388, Ann. Gas. 19120, 126.

There is a rather loose statement in the case of Smith v. State, 188 S. W. 984, 80 Tex. Cr. R. 82, announcing a contrary doctrine, but in this last case testimony showing that the appellant was married to another woman was held permissible, “as it was necessary to be shown that he was not married to the prosecuting witness.” In this case no such issue is raised. There was no pretense or suggestion that appellant was married to the prose-cutrix in this case, and no necessity for showing that he was married to some other woman, in order to meet this issue.

The state in this case, however, while conceding that the testimony was improperly admitted, contends that it was probably harmless, in view of the fact that appellant afterwards showed that he was married and had two children. The difficulty about the state’s position is that this testimony by appellant was offered after he had objected to the state going into this matter and after he had had his objections overruled and after prosecutrix had already been permitted to testify that he had a wife and two children. This would rather come under the rule that, when improper testimony is admitted by the state, it is usually not cured because appellant offers other testimony along the same line for the purpose of counteracting the testimony improperly elicited by the state.

Complaint is also made at the argument of the district attorney, which was as follows:

“She is a mere girl; you have them in your homes, indeed, 15, 16, and 17 years old. Charley Harper, father of the prosecutrix, is a better man than you, perhaps, or me. We are fortunate, gentlemen, that we are trying this case in the courthouse of justice; all of them don’t get there.”

This argument was improper, and has been condemned by this court in- many cases. Argument in no wise dissimilar from that in the instant case was condemned in the case of Masten v. State, 271 S. W. 922, 100 Tex. Cr. R. 30. See, also, Stanchel v. State, 231 S. W. 120, 89 Tex. Cr. R. 358; Atkeison v. State, 273 S. W. 596, 100 Tex. Cr. R. 313. Under these cases many authorities will be found supporting the holding that the above argument is error and, is of such error as to require reversal of the case. The state’s attorney in a case of this character will not be permitted by unmistakable inference or otherwise to state that in his opinion the party on trial is so clearly guilty that the father of the prosecutrix would have been justified in visiting summary punishment upon the defendant, and the argument is so clearly harmful and prejudicial as to make its withdrawal from the jury impracticable.

Por the errors above discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

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. 
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