Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years.
There are two bills of exception which raise practically the same question. These relate to the proof of other acts of intercoursе than that alleged in the indictment, and for which appellant was tried. When prosecutrix, Luna Wilson, was first placed on the stand, the State proved by her an act of intercourse occurring during the spring of 1903, about com planting time; and this was the transaction relied on by the State for the conviction. The State was then permitted to prove by said witness that on August 1st, some five or six weeks after the first occasion testified about, appellant came through an open window into her room at night, and had intercourse with her. The court explains the admission of this testimony by stating that when prosecutrix wаs first placed on the stand she testified that no one save defendant had ever had intercourse with her. Afterwards the State placed Dr. Hewitt on thе stand, and he testified that prosecutrix was about six months advanced in pregnancy at the time of the trial, which occurred on December 14, 1903. That this tеstimony of Dr. Hewitt as to the . extent of her pregnancy, if the State was not permitted to show subsequent acts, would tend to discredit the testimony of Luna Wilson as to intercourse with defendant in the spring of 1903, and the court deemed ' the evidence complained of as competent and admitted it. But when
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аll the testimony on both si’fies was introduced, upon motion of the defendant, the court withdrew the consideration of said testimony from the jury. The State was further permitted to prove that on another occasion between corn-planting time in the spring and me occasion in August, appellant sliрped into her room at night and had intercourse with her. The court explains the admission of this testimony in the same manner as stated above. The State insists, in the first place, that this testimony was competent because of the facts stated in the explanaion of the court; and because it tеnded to shed light on the transaction for which appellant was being tried. The State further contends that if said testimony was not admissible it was withdrawn by the court, аnd it was not of that injurious character which would affect appellant notwithstanding its withdrawal. Since the decisions of Smith v. State, 7 Texas Ct. Rep., 343; Barnett v. Stаte, 7 Texas Ct. Rep., 390; and Hackney v. State, 7 Texas Ct. Rep., 890, it is the recognized doctrine in this State that other acts of intercourse are not admissiblе in a rape case, unless such acts are made pertinent by some issue raised by the defense, or that such other acts tend to demonstratе or shed light upon the offense charged. Here we fail to perceive how said other two offenses proven served to shed any light upon the offense charged. Does the explanation made by the court suggest the admissibility of this evidence? It will be observed that the court states that the tеstimony was admitted for the purpose of corroborating or supporting the testimony of prosecutrix. The bill does not show that her evidence had been attacked. The fact that she stated she had never 'had intercourse with any other person than appellant, and that the physiciаn subsequently testified for the State that her condition as to pregnancy indicated she must have had intercourse with some person at a time subsequent to that testified to by her originally, was not an attack upon her testimony, much less an impeachment of her. She having testified that she had never had intercourse with any other person than appellant, would merely tend to show, in consonance with her testimony, that she must have had intercourse with аppellant on other occasions than that testified to originally by. her. If she had testified in the first instance that she had never had intercourse with any person except appellant, and only once about corn-planting time in the spring, then there might be some pretense for the admission of other acts. Even then it is doubtful if the testimony would have been admissible, inasmuch as the testimony adduced from the physician was introduced by the State, and up to the time these other acts of intercourse were proven, the defendant had introduced no evidence. Clearly the testimony was inadmissiblе. The remaining question is, was the testimony of such a character as that its withdrawal by the court would remove any injurious consequences. As to this matter the State refers us to a number of cases in which it has been held that the a.dmission of illegal
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testimony and its subsequent withdrawal by the court cured the error. Seе Miller v. State,
The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.