
    THOMAS v. STATE.
    (No. 9629.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.)
    1. Criminal law &wkey;3456 — -Testimony as to time in which average person could detect weakness of proseoutrix’s mind in prosecution for rape held inadmissible.
    In prosecution for rape on alleged insane person, testimony of nonexpert witnesses that average person could detect prosecutrix’s weakness of mind by watching her a minute,' or upon meeting her, or by speaking just a few words, was inadmissible.
    2. Rape <&wkey;>59(l6) — Refusal of requested charge in prosecution for rape held erroneous under evidence.
    In prosecution for rape on alleged insane person, refusal of requested charge that, if pros-ecutrix had lucid intervals, and if, at time of intercourse, she had sufficient mental capacity and will power to resist such intercourse had she so desired, but that she did not oppose same because of her desire to engage therein, to acquit defendant, held erroneous under the evidence.
    3. Rape <S&wkey;38( I) — Proof of condition, of prose-cutrix’s aged mqther after alleged rape should be excluded.
    In prosecution for rape of alleged insane person, proof of condition of prosecutrix’s aged mother after alleged offense should be excluded.
    Commissioners’ Decision.
    Appeal from District Court, Lee County, M. O. Jeffrey, Judge.
    
      Matthew Thomas was convicted of rape, and he appeals.
    Reversed and remanded.
    E. T. Simmang and T. W. Thompson, hoth of Giddings, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry,' Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

Appellant was convicted in the district court of Lee county of the offense of rape upon one Minnie Carlow, and his punishment assessed at 99 years, in the penitentiary. This is the second appeal of this case to this court. The first appeal will he found in 98 Tex. Cr. R. 428, 266 S. W. 147.

It was the contention of the state that the prosecutrix’s mind was so diseased at the time of the alleged offense as to have no will power to oppose the act of sexual intercourse, and the appellant was apprised of that fact at the time of said offense. While the appellant did not testify in his own behalf, it was his contention that the prosecutrix’s mind was not so diseased as to be without will power sufficient to oppose or resist the act of intercourse, and, if it were, that same was unknown to him at said time. This is a sufficient statement of the issues in the case, together with the facts stated in' the former opinion, as a basis for the discussion of this case.

Upon the threshold of this case we are met with several bills of exceptions complaining of the action of the trial court in permitting the state’s witnesses over his objection, to testify that they believed that “the average p'erson could detect her (prosecu-trix’s) mind was weak by watching her a minute, and not even saying a word to her” ; and to the said witnesses testifying that a person, upon meeting her, could tell she was insane immediately; and to others testifying that a person, upon meeting her, could detect that she was weak minded, “I think in just a few words.” To all of said testimony and similar testimony appellant promptly urged appropriate objections which were overruled by the court and exceptions taken' thereto. We are of the opinion that this testimony was inadmissible, and the learned .judge erred in admitting same. It was obviously proper for the state, after having nonexpert witnesses detail the acquaintanceship with, and their knowledge of, the acts and conduct of the prosecutrix, to then have them state that in their opinion she was insane, and to even go further and state how long it would take them to make such discovery; but, to permit them to go further, and testify how long it would take the average person or some other person to detect or discover the insanity of the prosecutrix, and give their opinion to that effect, we .think is going entirely too far, and was transgressing the province of the jury to draw their own conclusions as to this issue, and was permitting the witnesses to give their own opinion on the very vital issue in the case, and in effect telling the jury in' their opinion that the appellant knew at the very time of the act of intercourse the condition of the prosecutrix’s mind. This court, in the former opinion, in effect, held that this class of testimony was inadmissible, and it was improper for the state to prove by its witnesses that a person of ordinary intelligence would immediately know of the “unsoundness of the prosecutrix’s mind, or know it by the time she spoke two words.”

The appellant also complains of the action of the court in refusing to give his special charge No. 4, to the effect that, although the prosecutrix’s mind was diseased, but that if she had lucid intervals, and if, at the time of the intercourse, the lucid condition of her mind was such that she had sufficient mental capacity and will power to resist such Intercourse, had she so desired, but that she did not oppose same because of her desire to engage in such, to acquit the defendant. We think the testimony in this ease raised this issue, and required the court to charge on this particular phase of the case, and that it was error not to do so.

The appellant complains of the action .of the court in permitting the state, over his objection, to prove the condition of the prosecutrix’s aged mother, after the alleged offense, but said bill of exception is not prepared in keeping with the rules of this court. However, we desire to state that upon another trial, if this testimony is offered and objected to, same should be excluded.

There are also objections urged to the arguments of the district and county attorneys to the jury, wherein mention is made of the former trial of this ease, and other matters therein stated in said bills, but, in view of the disposition we have made of the case, and that said matters are not likely to arise upon another trial, we deem it unnecessary to pass on same at this time.

For the reasons above mentioned, we are of the opinion that the judgment of the trial court should be reversed, and remanded, and it is accordingly so ordered.

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.  