Lead Opinion
This is аn appeal from a conviction for rape, the punishment being assessed at seven years confinement in the penitentiary.
The State proved by the witness Pafford that he saw Cummins the morning after defendant’s arrest at the calabоose; he stated that defendant told him the previous night that he was going down to the wagon yard and have carnal interсourse with that woman, meaning prosecutrix. Defendant was not present at the time of this conversation but was in the county jail. Objection was urged that this was hearsay; that it was collateral to any issue in the case and inadmissible for any purрose, and could throw no light upon the transaction, and only served to prejudice the jury. The court qualifies this bill by stating that Cummins denied these statements," and they were admitted for the purpose of impeachment; and also because dеfendant when testifying as a witness denied making the statement. We are of opinion that this testimony should not have gone to thе jury. When the witness Cummins denied making *453 the statements, this was an end to the matter. The confessions, or declaration or admissions tending to incriminate defendant, or connect him with the rape should not be proved in this manner. Appellant was in no way rеsponsible for the statement of Cummins, and any statement made by Cummins could not be introduced as evidence against defendant directly or indirectly.
Witnesses Cantrell and Land were permitted to testify that the husband made an assault upon apрellant shortly after the alleged outrage of the prosecutrix—Cantrell being her husband. This occurred some time aftеr the alleged outrage in a different part of the town. Various objections were urged to the admission of this testimony. The court says, by way of explanation, “that it was admitted as a circumstance to show that the husband believed that he hаd found the man who had raped his wife.” This testimony is inadmissible, even for this purpose. If in fact the witness identified defendant, he cоuld so state; but it was not necessary to go into the details of an assault made by the husband upon the defendant, in order tо admit evidence that witness identified the assaulted party.
The testimony of the witness Cockrell to statements and conduct of the prosecutrix immediately after the alleged outrage was properly admitted. Defendant and his witness Cummins testifiеd substantially to two main facts: (1) there was no rape, that it was an indecent familiarity on his part with the woman; and (2) that she wаs willing to his suggestion on condition of the payment of money. The matters testified by witness Cockrell occurred a very few mоments after the defendant left the room, the scene of the alleged rape.
The remaining questions, as we understаnd the record, are without substantial merit.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
Addendum
ON MOTION EOR BEHEARING.
The judgment in this сase was reversed and the cause remanded at the Dallas term, 1902, and now comes before us on the State’s mоtion for rehearing.
In the former opinion we held that the evidence of the witness Pafford as to what Cummins stated to him on the morning after appellant’s arrest, in regard to what defendant stated to him as to his intention, was not admissible as impeаching testimony. Reviewing the bill of exceptions, it shows: “Pafford stated, T saw Cummins next morning after defendant’s arrest at the calaboose; he was in the calaboose. He said that defendant told him the night before that he was going back down to thе wagon yard and have carnal intercourse with that woman. Defendant was not present.’ ” The court admitted the samе as impeaching evidence. Defendant also, in testifying as a witness in his own behalf, de *454 .nied making said statement. As stated in the оriginal opinion: “When the witness Cummins denied making the statements, this was an end to the matter. The confessions or declarations or admissions tending to incriminate defendant, or connect him with the rape, should not be proved in this manner. Appellant was in no way responsible for1 the statement of Cummins, and any statement made by Cummins could not be introduced as evidencе against defendant, directly or indirectly.” We further state in this connection, that any act or declaration made by Cummins сould not incriminate or be used to the prejudice of defendant, unless defendant was so connected with it as to mаke it admissible evidence against him. If, as intimated in the court’s qualification, this testimony was sought to impeach defendant’s denial of the statement, it was clearly erroneous. If defendant made this statement to Cummins, it could have been provеd by anyone who heard that statement or knew it to be true. Cummins could have been placed upon the stand to testify to the statement made by defendant. If Cummins was placed upon the stand to prove the statement as having been made by appellant, and denied it, Cummins could not then be impeached by showing that he (Cummins) had told PafEord that defendant had made the statement. So, upon this bill of exceptions, we do not think the State’s motion for rehearing is well taken.
In regard to whаt was stated in the original opinion in regard to the witnesses Cantrell and Land, it was based upon the understanding that the bill of exсeptions had been authenticated by the trial judge. Upon an inspection of the record we find that this is not correct; that the trial judge, so far as this record is concerned, did not in fact approve this bill of exceptions. But there is this qualification to the bill, which tends to show that the court did approve the bill, but the record fails to incorporate his name: “It was admitted as a circumstance to show that the husband believed that he had found the man who had raped his wife.” If, as a matter of fact, this evidence was admitted, it was erroneous, as stated in the original opinion; but as presented by the record it can not be reviewed because not approved by the judge. And this much is said in order to make the opinion correspond with the record. The motion for rehearing is overruled.
Rehearing overruled.