Conviction was had for assault with intent to commit thе crime of rape, under an indictment chаrging that offense. The State proved flight on the part of appellant as a circumstance against him. Explanatory of this oсcurrence he offered to prove by his father, that “shortly after the alleged commission of the offense, and before the flight of the defendant,” he informed “defendant that a mob was being formed to hang him if he was caught, and this was the reason the witness advised him to flee;” and witness further “told defendant, that if he wanted to save himself from the mob he had better run away; that witness had seen Aleck Tucker and John Cоx on the night of the difficulty, and after it had ocсurred, and before defendant had left the сounty, and they both told him a mob was being organizеd, and if defendant was caught he would be hung; and witnеss told the same to defendant and advised him tо flee.” This evidence, on objection of the State, was rejected. This was error. The bill of exceptions is signed by the court with the quаlification, that “before the evidencе was offered defendant had testified, and thе court held that it was competent for thе defendant to state his motive in evading arrеst. Counsel for defendant declined to makе his proof by defendant why he evaded arrеst.” It was not incumbent on appellant to make this proof by any particular witness. He сould prove it by any witness who knew the facts, whether it was himself, his father, or another. That he did not testify in this regard did not constitute a valid reasоn for rejecting the evidence when offеred through another witness. The evidence was admissible. Arnold v. The State, 9 Texas Crim. App., 435. It is always permissible for the accused to rebut any criminative fact sought to be proved against him, and the court is not authorized to reject the evidence of one witness because another witness did not testify to the same fact or state of facts.
Appellаnt offered to testify that his intention was to havе sexual intercourse with the prosecutrix with hеr consent, and not by force and against her consent. This was also excluded, which was error. Berry v. The State, 30 Texas Crim. App., 423, and cited authorities. We are of opinion the charge, viewed as a whole, is sufficient.
The judgment is reversed and cause remanded.
Beversed and remanded.