
    STAFFORD v. STATE.
    (No. 9706.)
    (Court of Criminal Appeals of Texas.
    May 19, 1926.
    State’s Rehearing Denied June 23, 1926.)
    Rape <&wkey;40(3) — Where state relied on testimony of physical condition of prosecutrix after alleged rape, and her testimony as to pain, exclusion of evidence tending to show frequent acts of intercourse with others theretofore held error.
    In prosecution for rape, where state relied on testimony of mother as to poor physical condition of prosecutrix after act, and on latter’s testimony that she knew penetration had been effected because of severe pain, exclusion of evidence tending to show frequent and promiscuous acts of sexual intercourse of prosecu-trix with others theretofore held, error.
    Commissioners’ Decision.
    Appeal from District Court, Hood County; J. B. Keith, Judge.
    Bud Stafford was convicted of rape, and he appeals.
    Reversed and remanded.
    Chandler & Pannill and Oxford & Johnson, all of Stephenville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is rape, and the punishment is 15 years in the penitentiary.

The prosecuting witness testified, in substance, that the appellant took her and another woman out near the edge of the town of Stephenville and by force had carnal knowledge of her. The record bristles with doubt and uncertainty as to the question of consent to the alleged act of intercourse on the part of the prosecuting witness. The trial court recognized this in his charge, and charged -directly and pertinently on the question of feigned resistance.

The mother of prosecutrix, among other things, testified that the next morning after the alleged rape had occurred the night before she examined prosecutrix and found bruises on her, and in addition made the following statement:

“Her periods were not on at that time; they came on her about the 20th, about three days after the 17th. Before this ever happened she had' been just as healthy and as regular as a child could be. This was the 20th, and it lasted 10 days, up to in January. Her health has never been no account since that time.”

With the record in this condition, the appellant offered to prove by Clay McCluskey that in the month of September, 1924, the alleged rape having occurred in December, 1924, he had carnal intercourse with the prosecuting witness with her consent. By the same witness appellant offered to prove that he had intercourse with her in October, 1924. By the same witness he offered to prove that in the fall of 1924 the witness Earl Mathews and Theron York and the prosecuting witness drove in a car to a place several miles east of Stephenville, and that said McCluskey again had intercourse with prosecutrix with her consent, and that Mathews and York at different times that night went off with prosecutrix in the woods and stayed 15 or 20 minutes, after which all four of the parties returned to town.

He further offered to prove by the same witness that during the fall of 1924 he and Theron York and prosecuting witness again rode out at night in a car, and that, while York was out of their presence, he and prosecuting witness had intercourse, and that thereafter on said occasion the witness absented himself and left York and prosecuting witness for a period of several minutes, and that then all the parties got together and returned to Stephenville in said car.

Appellant also proposed to prove by this witness that in the fall of 1924 the witness, Albert McPherson, Theron York, and the prosecuting witness drove out east of Ste-phenville some 3 or 4 miles, and that McPherson and York got out of the car at the request of the prosecuting witness and left said witness and the prosecuting witness in this case in said car on the back seat, and that witness had intercourse with the said prosecuting- witness with her consent, and that a short time thereafter the witness got out of the car, and that York went to said car and spent several minutes with the prosecuting witness, and then returned to where witness ■was, and that then the said McPherson went to said car and spent several minutes with the prosecutrix in the back of said car, and that then all of said parties returned to Ste-phenville.

Appellant offered, to prove by the witness McCluskey that during the fall of 1924 the said witness had a conversation with the said prosecuting witness in Stephenville, and she agreed to meet him at the barn at her house that night, and that he did meet her there, she being dressed in her nightgown, and that a noise which prosecuting witness said was created by her mother caused the witness to leave.

Appellant also offered to prove by the witness Fred Stafford that in September, 1924, the said Stafford, the prosecuting witness, and Robert Williams returned from Dublin, Tex., and the prosecuting witness was driving the car, and the said prosecuting witness drove the car off of the highway onto a neighborhood road, stopped the car, and asked the parties which wanted to go first, and that thereupon Stafford stated that he did, and the prosecuting witness asked Williams to go away from said car, and that, after he had gone, Stafford had intercourse with the prosecuting witness in said car with her consent, that thereafter Stafford left the car and remained away for a short time, Williams having returned to said car, and that thereafter all of the parties returned to the town of Stephenville.

He also offered to prove by the witness Stafford that he and Dick Ayers drove in the nighttime to Dublin, Tex., and that on their return Stafford had intercourse with the prosecutrix with her consent, and thereafter Stafford left the car in charge of Ayers and the prosecutrix and remained away from it a while, and then they all returned to Ste-phenville, and that thereafter, in October, 1924, prosecutrix, together with Fred Stafford and Wayne Kay, took a drive in the car at night when Stafford again had intercourse with the prosecutrix and again left the car in charge of the prosecutrix and Kay.

. He also complained at the court’s- action in excluding the testimony of Robert Williams, which, if true, was to the effect that he in the month of September, 1924, had intercourse with the prosecutrix.

The court also excluded the testimony of Dick Ayers, which was to the effect that some time in the month of September, 1924, he had intercourse with the said prosecutrix with her consent, and he excluded the testimony of the witness Kay to the effect that he had intercourse with the prosecutrix in October, 1924. '

Appellant also complains at the court’s action in excluding the testimony of Jack Davidson to the effect that some time in the year 1924, on one occasion when the prose-cutrix was at the house of the said Jack Da-' vidson, he (the said Jack Davidson) was not feeling well and was lying in the bed with the cover pulled over him, and that during the absence from said room of any one except himself and the said prosecutrix she got in bed with him and got under the cover and began to fondle his private parts, and that the said Jack Davidson’s sister came into the room and caused said prosecutrix to leave said bed.

All of the foregoing testimony was excluded by the court on the ground that the appellant would not be permitted to prove specific acts of carnal intercourse between pros-ecutrix and other persons than the person on trial. Pefferling v. State, 40 Tex. 487; Dorsey v. State, 1 Tex. App. 33; Jenkins v. State, 1 Tex. App. 346; Mayo v. State, 7 Tex. App. 342; Lawson v. State, 17 Tex. App. 292. These cases each sustain the conclusion reached by Mr. Greenleaf, who says:

“The character of the prosecutrix for chastity may be impeached, but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to a criminal connection with any other person except as to her .previous intercourse with the prisoner himself; nor is such evidence of other instances admissible.”

The reason for the rule as stated in the authorities above cited is that:

“The inquiry is for the purpose of proving character, and it would operate a surprise if an inquiry as to particular instances of immorality or intercourse with particular persons was permitted to establish the character of the witness, who, as has been said, cannot be supposed to come prepared to defend her character, except against a general attack.”

It occurs to us that under the facts in the instant case neither the rule nor the reason for the rule as above stated applies. The cases above decided seem to be based upon the question as to how the character of the prosecutrix for chastity may be impeached. We know of no case that holds that evidence of other acts is inadmissible if it sheds light upon a contested issue in the case. In the instant case, the mother of prosecutrix had testified to facts "which, in substance, show that the act of intercourse for which the appellant was on trial had practically ruined the health of her daughter. The appellant had raised the issue that penetration was not accomplished, and on this issue had introduced testimony showing that the prose-cutrix had said the day after the alleged offense that she had not been penetrated. On the contrary, the prosecutrix on the trial of the case said that she knew that she was penetrated because the act of penetration gave her great pain. We think the prior acts of intercourse were clearly admissible -as rebutting the testimony of her mother as to the effect on prosecutrix’s physical condition of the act and as also rebutting the testimony of prosecutrix to the effect that she could testify to penetration because of the severe pain occasioned thereby. It can hardly be seriously contended that, if prosecutrix had been in the habit of having illicit relations with men singly, in pairs, and in gangs, a single act on the night in question .would have likely ruined her health. Neither can it be contended that, if she had been as promiscuous in her sexual favors as the excluded testimony would indicate, she would be likely to identify penetration on the night in question by reason of its severe pain. As above stated, where the testimony sheds light on- an important issue in the case, evidence of other acts may be proved. Calhoun v. State, 85 Tex. Cr. R. 496, 214 S. W. 339; Lusty v. State, 97 Tex. Cr. R. 167, 261 S. W. 775; Bigliben v. State, 68 Tex. Cr. R. 530, 151 S. W. 1044.

Various other errors are presented by appellant, but, as they may not occur in the same form on another trial of the case, a discussion of them is pretermitted.

Eor the error of the court in excluding the testimony 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

On Motion for Rehearing.

LATTIMORE, J.

The indictment in this case contained two counts, one alleging rape of Emma Moser, a woman, by means of force, threats, and fraud; the other charging an assault with intent to commit rape upon Emma Moser, a woman, by force, threats, and fraud. The mother of prosecutrix testified that her daughter had been in good health up to the time of the alleged assault, but had been in. bad health continuously since same. Prosecutrix herself testified that the act of intercourse with appellant, upon which the charge in this case is predicated, caused her great pain and suffering, that it was the first time she had ever had intercourse with a man. Where the physical condition of pros-ecutrix is relied upon as corroborative of her claim that she was assaulted by the accused, or when such testimony tends to solve any other issue in the case, it is permissible to prove acts of intercourse with other persons prior to the date of the commission of the offense under investigation. Appellant offered to prove by many witnesses acts of- intercourse on the part of prosecutrix prior to the act here relied upon with appellant, which proof was rejected. In view of the reliance had by the state upon the physical condition, of prosecutrix after the occurrence, as testified to by her mother, and in view of her further testimony that the act caused her great physical pain and suffering, it would seem permissible under the authorities cited by Mr. Branch under section 1787 of his Annotated P. C., as well as the authorities cited in the original opinion, to admit proof of such prior acts on the part of prosecutrix.

While one who is unchaste may be ravished, and is entitled, to the protection of the law against one who assaults her, still, where testimony of facts' such as above referred to have apparently probative force bearing upon contested issues, the courts will permit such testimony.

The state’s motion for rehearing will be overruled. 
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