Appellant was convicted in the District Court of Kaufman County of the offense of rаpe, and his punishment fixed at five years in the penitentiary.
The testimony is short. Lucile Brоwn, prosecutrix, testified that on the date charged appellant camе to her house in the absence of her husband and by force had carnal knowledge of her. She said that she was choked and that appellant scratched her cheek in the scuffle causing bloodshed; that at once upon being left by appellant, she went out into the field where her husband was plowing with a man named Wiley and told them what appellant had done and exhibited to them a swollen throаt and scratched cheek. In this she was corroborated by her husband and Wiley. For thе defense the brother of the husband of prosecutrix testified that prosecutrix told him that she would not have had appellant indicted if he had paid her the monеy that he promised her; that Sam Taylor had promised to pay her some money but failed to come up with it and she had him indicted.
Appellant has a bill of exceptions to the refusal of the learned trial judge to permit defense witness Pipеr to testify that on several occasions he had caught the defendant and prosecuting witness in bed *381 together and that both were under the cover. The qualification to this bill makes it appear that the trial judge was of the opinion that this testimоny was as to an immaterial matter and that the charge being rape by forcе, such testimony would be incompetent as affecting the previous chaste character of the prosecutrix. The question in a case of rape by fоrce as to whether the prosecuting witness had in fact theretofore been guilty of having criminal intercourse with the defendant, would seem in nearly all instances tо be material as affecting the issue of carnal intercourse by force vеl -non as in the instant case. The question for the jury to decide was whether or not thеy believed that the intercourse with prosecutrix on the part of appellant, if any, was without her consent and against her will. It seems reasonably clear thаt proof of the fact that prosecutrix had theretofore had intercоurse with the accused would be admissible, or that their relations with each other сould be shown to have been such as that this would be a reasonable inference. A number of cases are cited by Mr. Branch in his Annotated P. C., p. 1003, supporting the proposition that when consent is an issue, for the purpose of raising the presumрtion that she yielded her assent and was not in fact forced, the defendant may shоw that she had previously granted carnal favors to him. Suqh we conceive to be the logical effect of the testimony rejected, which action is under discussiоn. .
Appellant filed an application for a suspended sentence. His рroof in support of the proposition consisted of the testimony of two witnеsses, one of whom said that he had known appellant twelve or fourteen yеars and that he had never been indicted for a felony within the knowledge of witness, and that he had never been in any trouble since witness had known him and witness had known him since he was a little kid. The other witness testified on this point that he had known appellant six or seven years and that his general reputation was that he was a good, pеaceable negro and that he had never been convicted of a felony that witness knew of. We do not incline to the view that this did not present sufficient testimоny to call for the submission of the issue of suspended sentence. Notwithstanding the application was filed in the instant case, the court did not submit the law of such issue, to which an exception was taken. Where there is testimony reasonably suppоrting an issue, we think it beyond the province of the trial court to himself pass upon its sufficiency.
For the errors mentioned the judgment will be.reversed and the cause remanded.
Reversed and remanded.