
    TABOR v. STATE.
    (No. 10030.)
    (Court of Criminal Appeals of Texas.
    Dec. 22, 1926.
    State’s Rehearing Denied Feb. 2, 1927.)
    Criminal law @=>338(7) — In rape prosecution, evidence that accused was married was inadmissible.
    In prosecution for rape, the proseeuéng witness being under 15 years of age, it was error to permit state to prove that accused was a married man and had wife at home.
    Commissioners’ Decision.
    Appeal from District Court, Hall "County; R. I. Templeton, Judge.
    Robert Tabor was convicted of assault with intent to rape, and he appeals.
    Reversed and remanded.
    R. H. Templeton, of Wellington, and R. M. Turpin, and Charles L. Black, both of Austin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BETHEA, J.

The appellant was convicted of assault with intent to rape and his punishment assessed at confinement in the penitentiary for 3 years.

The indictment in this case was for rape and contained five counts. The first count charged that appellant did have carnal knowledge of the prosecutrix; she being under the age of 15 years, and not being his wife. The second count charged that appellant had carnal knowledge of the prosecuting witness; she being under the age of 18 years, and not his wife. The third count charged rape by force. The fourth count charged rape by force and threats. And the fifth count charged rape by threats.

Suffice it to say that there is nothing in the record that would justify the admission of the evidence complained of in appellant’s bills of exception Nos. 12 and 13, wherein the appellant is complaining of the action of -the court in permitting the state to prove by the appellant, Robert Tabor, and the witness Elmer Glover, that the appellant was a married man and had a wife at home on the night of the alleged offense. 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. McDuff v. State, 103 Tex. Cr. R. 668, 281 S. W. 1073; Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849; Smith v. State (Tex. Cr. App.) 74 S. W. 556; Wilkerson v. State, 60 Tex. Cr. R. 388; 131 S. W. 1108, Ann. Cas. 19120, 126.

Appellant complains in his bill of exceptions No. 11 of the argument of the private prosecutor in the ease, wherein the prosecutor referred to the defendant 19 times by count as a married man and tlie jury was asked to conyiet the defendant because be was a married man and not' at borne and out •of bis place and mixed up with a young girl like tbe prosecuting witness and that be ought to be taught a lesson that would keep such married men as be at home. In tbe light of all tbe facts in this case, we bold that said argum^it, while reprehensible, would not probably be reversible error, but, in view of another trial of this case, we feel certain that this question will not arise again.

There are a number of other questions raised by tbe appellant, but, in view of another trial, we do not deem_it necessary to discuss them.

For tbe error pointed out above, tbe judgment is reversed, and tbe cause remanded.

PER OURIAM. Tbe foregoing opinion .of tbe Commission of Appeals has been examined by the judges of tbe Court of Criminal Appeals, and approved by tbe court.  