
    WALSH v. STATE.
    (No. 8365.)
    (Court of Criminal Appeals of Texas.
    June 26, 1925.)
    Criminal law <§=»450 — Testimony permitting witness to announce opinion of accused’s guilt before jury erroneously admitted.
    In prosecution for rape, testimony of pros-ecutrix’s father, that he delayed filing of complaint because he intended to MU accused, was erroneously admitted as allowing witness to announce, in presence of jury, his opinion as to accused’s guilt, and was not justified by any cross-examination of such witness.
    Commissioners’ Decision.
    Appeal from District Court, Hemphill County; W. R. Ewing, Judge.
    Pat Walsh was convicted of rape on a female under 18 years of age, and he appeals.
    Reversed and remanded.
    Prank Willis, of Canadian, for appellant.
    ' Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Hemphill county of rape on Mary Parker, a female under the age of 18 years, and his punishment assessed at confinement in the state penitentiary for a term of 8 years.

The testimony of the alleged injured party shows the offense to have been committed at night on the road between the town of Spear-man and the home of Howard Davis, a neighbor with whose family prosecutrix was temporarily staying while her parents were visiting a sick daughter in Oklahoma. The offense is alleged to have occurred on Wednesday night. George Parker and his wife, prosecutrix’s parents, did not return home until the following Sunday morning, and no complaint was filed until Friday following their return. It was the contention of pros-ecutrix that the act of intercourse to which she testified was without her consent, an,d she deposed to being sore and suffering as a result thereof. Her testimony shows that she associated with various neighbor women and with her brother and sisters in the meantime, yet she did not make complaint of the assault to any one from Wednesday night until her parents returned home on Sunday morning. There is no medical testimony in the record showing her physical condition subsequent to the alleged assault. The testimony of prosecutrix, however, if true, shows that on the night in question she was about 15 years of age, and that appeilant had carnal knowledge of her. She is more or less cogently corroborated on matters relevant to the issues involved. Appellant testified in his own behalf and made a sweeping denial of the material testimony of the pros-ecutrix, and there is some testimony in the record corroborating him. This is a sufficient statement of the facts to enable us to pass on the only question we care to discuss in the case.

Appellant seriously complains, in his bill of exceptions Noi 12, at the action of the court in permitting the state, over his objection, to ask the witness George Parker, the father of prosecutrix, the following question, and also, to the answer of said witness thereto: “Teíl the jury why you waited, when you got back Sunday morning, until Friday to file the complaint,”. and the witness answered, “Because I aimed to kill him; I didn’t see this defendant at any time from the time I got home Sunday morning until the time of the filing of the complaint; the first time I ever saw this defendant was right here at Canadian at the courthouse when the grand jury was in session at the beginning of the court.” The appellant objected to said testimony, for the reason that same was inflammatory, prejudicial, irrelevant, and immaterial, and permitted the witness George Parker to announce in the presence and hearing of the jury his opinion as to the guilt or innocence of the defendant, and because it permitted testimony' to go to the jury that it was the intention of the father of prosecutrix to kill defendant. Bills of exception Nos. 11 and 12 show the admission of similar testimony over prae-tically the same objection. Tbe court qualifies éach bill with the statement:

“The testimony complained of in this bill of exception was .admitted because of the cross-examination of the witness George Parker by counsel for defendant, as shown by statement of facts, pages 44 and 45.”

The cross-examination shows that the witness was asked certain .questions seeking to elicit from his the admission that after he heard of the alleged assault, and before complaint was filed, he sought the aid of the witness Davis to help him extort money or a car from the defendant. This he very bitterly denied, and in doing so used language and an epithet that has not infrequently caused serious consequences. Following this vehement denial, witness admitted that the complaint was not filed until Friday after he reached' home the prior Sunday. We have made a careful study of the cross-examination, and fail to find anything therein that justifies the admission of the testimony complained of. We are cited by the state’s attorneys to the case of Manley v. State, 69 Tex. Cr. R. 169, 153 S. W. 1138, Maclin v. State, 65 Tex. Cr. R. 384, 144 S. W. 956, Comegys v. State, 70 Tex. Cr. R. 495, 156 S. W. 642, and other cases of similar import as being authority for the admission of this testimony under the court’s qualification of the bills. ’ These cases in our opinion go no further, nor indeed does any other case to which our attention has been called, than to hold that.it is permissible to allow the witness to be interrogated about any fact that will elucidate or explain his testimony, given on cross-examination, but they do not go to the extent of permitting a witness, under the guise of clarifying or explaining his testimony, to give his purpose and intent to kill the person on trial. To do so would transgress the rule which precludes a witness from giving his opinion of the guilt or innocence' of the accused, and it would be tantamount to permitting him to tell the jury that in his opinion the defendant was not only guilty, but that the proof was so evident and the crime so grave as to make nothing less than death a commensurate . punishment. This would be a monstrous doctrine, and its bare statement makes it repulsive tó every idea of such a fair and impartial trial as every person is entitled to receive under our Constitution and laws.

This identical question was before this court in the case of Adams v. State, 52 Tex. Cr. R. 13, 105 S. W. 197, under facts very similar to those in this case. We note the follow-ipg from Judge Brooks’ opinion in that case: While Mrs. Ayers, prosecutrix’s mother, was on the stand, she was permitted, over appellant’s objection, to state that, when she went to the home of defendant after the alleged offense, if she had met defendant she thought she would have killed him.' The trial court sought to justify the admission of this testimony on the ground that defendant had cross-examined the witness as to her purpose in going to his house, and had sought to show that she had gone over there to get an address of a Mr. Foster, and that she was mad at defendant about a debt due her little boy. Under these conditions Judge Brooks held the admission of the testimony to be reversible error, saying:

“The .fact that, the prosecutrix’s mother may have thought appellant was guilty, and may have had evidence to her mind sufficient to warrant her in seeking appellant and killing him, is not legitímate evidence to go before a jury in passing upon the guilt or innocence of appellant, but his guilt must be predicated upon the testimony of witnesses sworn, and their evidence given according to the known rulés of law.”

See, also, McIntosh v. State, 85 Tex. Cr. R. 417, 213 S. W. 659.

Because the court erred in admitting the testimony complained of, it is our opinion that the judgment should be 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. 
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