
    McWHORTER v. STATE.
    (No. 7311.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1923.)
    1. Rape <®=x>40(5) — Evidence of general bad reputation for chastity not admissible, ill prosecution for statutory rape.
    Evidence of general bad reputation for virtue and chastity is inadmissible, where the defense in a prosecution for statutory rape of females between the ages of 15 and 18 years is based upon a claim of previous unchaste character.
    2. Criminal law <®=»4I9, 420(11) — Witnesses <§r=o388(2) — Impeaching evidence held inadmissible where no> predicate, and because conversation testified to was not made in presence of accused.
    Testimony to impeach witness for accused in a prosecution for statutory rape, as to a conversation state witness had with accused’s sister, relative to a conversation accused’s sister had with accused’s wife, in which latter conversation accused’s wife requested accused’s sister to intercede with her brother and get him to let prosecutrix, stepchild of accused, alone, held not admissible to' impeach witness for accused, no predicate having been laid, and the conversation of the sister with accused’s wife not being in the presence and hearing of accused, such conversation being hearsay.
    3. Criminal law <s==>594(I) — Refusal to grant continuance held not error.
    It was not error, in a prosecution for statutory rape, to refuse a continuance, where no diligence of accused was shown, and the absent testimony was not of such character and materiality as to require the granting of it, the prosecutrix having admitted, while testifying, that she had made statements similar to those attributed to the absent witnesses and apparently desired for the purpose of showing that she had made statements contrary to her testimony.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. C. McWhorter was convicted of statutory rape, and appeals. ' Reversed and remanded.
    
      A. M. Mood, of Amarillo, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Potter county of stkt-utory rape, and his punishment fixed at confinement in the penitentiary for a period of 30 years.

Prom the record we learn that appellant married the mother of prosecutrix a few years prior to the date of the occurrence made the subject of the instant charge. Some months prior to the date of said alleged rape, appellant’s wife died. From that date appellant lived with his stepchildren until after the date of the said charge, pros-ecutrix being taken by her own father, and kept by him after the bringing of this charge against appellant down to and during the trial hereof. There was quite a vigorous contest made upon the proposition of whether or not prosecutrix was over or under 15 years of age at the date of the particular occurrence, the jury’s consideration being limited by the charge of the court, in determining the guilt of the accused to the proposition that they must believe her under 15. It was insisted by appellant and his witnesses that pros-ecutrix was past her fifteenth birthday at such time and therefore subject to attack, upon the proposition that she was of previous unchaste character at the time of the rape, and had consented thereto. As a part of his defensive proof, appellant attempted to show the previous unchaste character of pros-ecutrix by testimony to the effect that her general reputation for virtue and chastity anterior to such time, was bad. The rejection of testimony to this effect is made the subject of a bill of exceptions.

The law allowing one charged with statutory rape upon a female between the ages of 15 and 18, to show, as a matter of defense, that such female had consented and that she was of previous unchaste character, is of recent date in this state, and the only decisions of our cpurt shedding light upon this matter are also recent decisions. In Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 992, the subject under discussion was adverted to and the rule herein announced briefly stated. Without extended discussion of authorities cited in the opinion in said case, it is now stated that an. examination of them discloses that, in the majority of the states of our Union, the rule is adhered to that evidence of general bad reputation for virtue and chastity is inadmissible, where the defense is based upon a claim of previous unchaste character. Said authorities draw the distinction between general reputation, and its reference to what others or the public generally may say or think, with reference to the virtue and chastity of the female in question, and of the chaste character of such female as affected by her actual conduct. We have examined the authorities cited in said opinion, and believe the rule announced in the majority of our states is sound, and that the trial court in the instant casé committed no error in rejecting said testimony.

Mrs. Bessie Record gave material testimony in appellant’s behalf. From bill of exceptions No. 14 we gather that the state sought'to impeach this witness, and asked her over objection if she had told her mother-in-law, Mrs. Polly Record, that she had a conversation with appellant, or with his wife, in his presence relative to his having had sexual intercourse with Yelma Harrison, prosecutrix herein, Velma being, as above stated, the daughter of appellant’s wife by a former husband. Mrs. Bessie Record denied having had such conversation. The state then introduced Mrs. Polly Record. Appellant again objected to her testimony upon the ground that the predicate laid for impeachment was insufficient and the subject-matter of the proposed impeachment was immaterial, prejudicial, and hearsay. We quote from said bill/Of exceptions at this point:

“Q- (by Mr. Thompson, Counsel for the State): ‘Now, Mrs. Record, I hope we will be able to ask you a question this time. Have you had any conversation with Mrs. Bessie Record relative to any transaction which the defendant is alleged to have had with this girl in this case?’ (referring to prosecutrix, Yelma Harris on). Whereupon counsel for the defendant objected because said question called for hearsay testimony, conversations in the absence of the defendant, and did not follow any predicate attempted, to be laid, and the court admonished state’s counsel ‘You must confine her now to what happened, what you asked this other witness about and nothing else,’ and state’s counsel further inquired: T will ask you whether or not, prior to your son’s death, you had any conversation with Mrs. Bessie Record in Potter county, Tex., relative to a certain conversation which, she had had with J. O. McWhorter, concerning his having sexual intercourse with this Yelma Harrison,’ and counsel for the defendant made the same objection to said question as immediately above set out, which objection was overruled by the court, and the witness replied: ‘Well, you asked me that question before dinner, the same question,’ and the court directed the witness to ‘just answer that question now,’ and the witness stated that she did not understand the question, and state’s counsel repeated the question to her, and the defendant’s counsel made the same objection thereto, that it did not follow any predicate, called for hearsay testimony, and in no way on earth can be met or looked into, and state’s counsel thereupon changed the form of said question as follows: ‘Mrs. Record, did you have any conversation with Mrs. Bessie Record last fall in Amarillo here, _or in Rotter county, in which she made any statement to you as to whether or not the defendant and his wife had told her that ho was guilty of this offense he is charged with?’ To which question counsel for the defendant objected because the same followed no predicate laid, called for hearsay testimony and conversation in the absence of defendant, and the court overruled said objection and each thereof, and permitted said Mrs. Polly Record to answer that ‘she (Mrs. Bessie Record) told me defendant’s wife came to her and asked her to talk to defendant and get him to let this girl (meaning prosecu-trix) alone,’ and said witness was further permitted to answer, over the objections: T told you that she (Mrs. Bessie Record) told me. She told me that defendant’s .wife came to her and asked her to talk to defendant and get him to let the girl (meaning prosecutrix) alone and that is all she said,’ whereupon the defendant’s counsel moved that the court strike said answer for the same reasons as had been by defendant assigned for his objections thereto, and the court overruled and denied said motion, and permitted said question and answer to remain in the record, to all of which proceedings and rulings of the court, in permitting said Sirs. Polly Record to testify to what Mrs. Bessie Record had told her defendant’s deceased wife had done, the defendant then and there in open court duly excepted and here now tenders this his bill of exception No. 14, and prays that same be approved and made a part of the record herein, which is accordingly done.
“Henry S. Bishop,
“District Judge, Presiding.”

We know of no reason for holding such testimony as that given by Mrs. Polly Record admissible. The statements attributed by her to Mrs. Bessie Record in no. way responded to any predicate laid, nor can we see any ground upon which such testimony was competent. A conversation had by Mrs. Bessie Record with appellant, or with appellant’s wife in his presence, as referred to in the attempted predicate, is a wholly different matter in legal contemplation from a conversation had hy Mrs. Bessie Record with appellant’s wife, not in his presence or hearing. The legal difference is as wide apart as the poles. Appellant could he bound or attacked, or his witness impeached, by proof of a conversation had with him or with his wife in his hearing, but such conversation, if had with his wife out of his presenee and hearing, would be purely hearsay and no evidence at all. Mrs. Polly Record did not state in either answer made by her, as set out in her impeaching testimony in the bill of exceptions above quoted, that her conversation with Mrs. Bessie Record related to or purported to contain any. conversation had hy Mrs. Bessie Record with appellant or with appellant’s wife in his presence. Such testimony was highly prejudicial. It placed before the jury the fact that Mrs. Bessie Record, a sister of appellant and a witness in his behalf, introduced and vouched for by him, had stated to Mrs. Polly Record that appellant’s wife, the mother of prosecutrix, a woman who was dead at the time of this trial, had asked Mrs. Bessie Record to intercede with her brother, this appellant, and get him to let prosecutrix alone.

Appellant sought a continuance, but in our opinion there was no error on the part of the learned trial court in refusing same. Diligence was not shown, nor -was the absent testimony of such character and materiality as to require the granting of such continuance. The prosecuting witness admitted while on the stand, testifying in behalf of the state, that she had made statements similar to those attributed to the absent witnesses and apparently desired for the purpose of showing that prosecutrix had made statements contrary to her testimony as given herein.

For the reason above set forth, the judgment will be reversed, and the cause remanded. , 
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