
    JENNINGS v. STATE.
    (No. 4312.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.)
    1. Criminal Law <S^200(7) — Fobmeb Jeopardy — -Statute.
    Pen. Code 1911, art. 1317, provides that if a house be burglarized and the person guilty of such burglary shall, after so entering,, commit any offense, he shall be punished for burglary, and also for whatever other offense is committed, and article 1318, providing that if the burglary was effected to commit one felony and the person guilty thereof while in the house committed another felony, he shall be punishable for any felony so committed as well as the burglary. Defendant, in a prosecution for an assault with intent to commit rape, pleaded former jeopardy, alleging that he had formerly been indicted for burglary with intent to ravish the named woman in the house at the time, and had been acquitted. Held, that the sustaining of a demurrer to the plea and the exclusion of all testimony in support of it was proper.
    [E'd. Note. — Por other cases, see Criminal Law, Cent. Dig. § 403; Dec. Dig. @=>200(7).]
    
      2. Criminal Law <§=363 — Rape <@=48(1) — Evidence — Res Gesms.
    In a prosecution for an assault with intent to rape, the statements of the assaulted party testified to by certain witnesses and by such party herself, and her statement soon afterwards to others complaining of the injury inflicted by defendant, and their testimony as to the conditions of her clothes and person and bed and room, where it is alleged the assault occurred, were res gestae, and admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig; <@=363; Rape, Cent. Dig. § 67; Dec. Dig. <@¿348(1).]
    3. Rape <§=40(3) — Evidence—Character op Prosecutrix.
    Evidence that the prosecutrix had theretofore lived with another man at her house, and had had an illegitimate child, and had been compelled to leave her home on account of her immoral relations with men, was inadmissible.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 57; Dec. Dig. ©=40(3).]
    4. Rape <@=59(1) — Trial — Submission oe Defenses.
    Where defendant’s testimony made an issue as to self-defense, or as to his going to see prose-cutrix that night at her invitation and having sexual intercourse with her as testified by him, the failure to submit such defenses was reversible error.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 88; Dec. Dig. <@=59(1).]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Raphael Jennings was convicted of an assault with intent to rape, and he appeals.
    Reversed, and cause remanded.
    I. N. Williams, of Mt. Pleasant, and Seb F. Caldwell, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to rape, and assessed the lowest punishment.

He pleaded former jeopardy. His plea alleged that he had formerly been indicted for burglary with intent to ravish Tina Carter, a woman, in said house at the time, and that on the trial therefor he was acquitted. The court properly sustained a demurrer to this plea and excluded all proffered testimony to prove it. The court’s action was in accordance with the statute and the many decisions thereunder. Articles 1317,1318, P. C., and decisions thereunder.

The statements of the alleged assaulted woman made to, and testified by, Gus Rutherford and his wife, and by her also, were clearly res gestas, and admissible, and so were her statements soon thereafterwards made to others complaining of the injuries which she claimed were inflicted upon her at the time by appellant, and their testimony as to the conditions of her clothes and person and bed and room, where it is alleged the assault occurred.

The court did not err in refusing to permit Mollie Crosby to testify in substance that the alleged assaulted woman had theretofore lived with another man at her house, and that she had had an illegitimate child, and that she had been compelled to have her leave her home on account of her immoral relations with men. Wood v. State, 189 S. W. 474, recently decided, but not yet officially reported, and authorities therein cited.

Without reciting all of it, the testimony of the alleged assaulted woman was to the effect: That appellant came to her house where she was living alone between 1 and 2 o’clock at night when she was asleep. That his coming into her room must have awakened her, for the first she saw of him was when he was standing at her bed with a lighted match. She asked who it was, and he told her. She asked what he wanted, and he told her that he had come to see her to have sexual intercourse with her. That she refused to do this, ordered him away, and that thereupon he violently assaulted, choked, and beat her in an attempt to have intercourse with her.

Appellant testified: That prior to this time he had been with her many times and had repeatedly previously thereto had sexual intercourse with her with her full consent. That on the evening this assault occurred at night she met him on the streets in town and specially invited him to come down to see her that night and have sexual intercourse with her, and that he went at her invitation at the time she says he was there. That when he reached there he knocked on the door. She responded, asking who it was, when he told her, and that she got up and let him in. That he thereupon, with her full consent, went to bed with her, stayed with her some two hours, and during the time had two acts of sexual intercourse with her with her full consent. That just after this last act, she wanted him to pay her $1 for his pleasure with her. That he told her he had no money and did not pay her. That it was solely because of his failure and refusal to pay her the dollar at the time that she got mad at him, assaulted him, and that his assault of her thereupon followed and was wholly in self-defense from his testimony and standpoint. He introduced more or less testimony tending to show his prior previous relations with the woman as he testified he had had and of meeting her in the town the evening before and having said engagement with her to go out and stay with her that night.

The court in his charge did not submit either of his claimed defenses, that of self-defense or his going to see her that night at her invitation and having sexual intercourse with her as testified by him, and that he in no way assaulted her for the purpose or with the intention of having sexual intercourse with her. Appellant objected to the court’s charge for failure to submit his claimed self-defense, and asked a charge on the subject himself, which the court refused. He also asked a charge on his other defense, as stated, which the court refused. In our opinion, the court’s action in both of these particulars was material error against appellant. It is unnecessary to discuss these questions. The mere statement of them shows material error against appellant, for which the judgment must he reversed.

While appellant assigns error in the refusal of other special charges requested by him, none of them present any error.

For the errors pointed out, the judgment is reversed, and the cause remanded 
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