Rosamond v. State , 101 Tex. Crim. 315 ( 1925 )

Appellant's motion for rehearing questions our former opinion in the disposition of the points raised by bills of exception four, five and eleven. The first bill referred to shows that the court refused to withdraw from the jury prosecutrix's statement that appellant took her to Terrell. We think appellant's contention that the statement carried an implication of another act of intercourse is not sound. At most it only showed association with prosecutrix subsequent to the act of carnal knowledge shown by the State in developing its case in chief. We are not aware of any authority which precludes the State from proving other acts if showing familiarity and association between the parties but falling short of showing another act of intercourse. Battles v. State, 53 Tex, Crim. Rep., 202, 109 S.W. 195; Henard v. State, 47 Tex. Crim. 168, 82 S.W. 655. Other authorities illustrating the rule are collated under subdivision 4, Sec. 1788, Branch's Ann. P. C. The ruling of the court in this particular must be appraised by the condition existing at the time made and cannot be carried forward and connected with the matters complained of in bill eleven which occurred long subsequent in the development of the trial.

As we understand the record the matter complained of in bill number five arose in this wise: — Prosecutrix had testified on direct examination to only one act of intercourse. On cross-examination she said when this act occurred no one was present but she and appellant, and that no one else was near at the time. She was then further asked on cross-examination if she had not testified on a former trial that her brother caught them in the act. In response to the latter question she admitted that she had so testified, but explained the apparent contradiction by stating that the time her brother caught them was not the time testified to by her on the present trial. This evidence was drawn out by the appellant, not the State. To have restricted prosecutrix merely to an admission that she had said on a former trial that her brother caught them, — (which appellant contends should have been done) — without permitting her to explain the apparent contradiction would have been manifestly unfair to the witness. It is not every reference to, or proof of, more than one act of intercourse which is denounced, the rule being that ordinarily the State should not in developing its case in the first instance make proof of but one such act. As the case develops conditions may arise which make it permissible and proper to show other acts. The present case in the particular mentioned furnishes such an instance. See Crosslin v. State, 90 Tex.Crim. Rep., 235 S.W. 905; Rosamond v. State, 249 S.W. 468; Bradshaw v. State, 82 Tex. Crim. 351, 198 S.W. 942; Rosamond v. State, 97 Tex. Crim. 569,263 S.W. 297.

Bill of exception number eleven recites that a number of named witnesses were called by appellant and testified to his good reputation as a peaceful, law-abiding citizen and gentleman in the community where he resided. The complaint is that upon cross-examination of these character witnesses the State asked if they had not heard that appellant admitted taking prosecutrix to Terrell and there sleeping with her at the hotel. The bill seems to be directed at what is supposed to have been the improper asking of the question. It does not set out the answer of any witness in reply thereto. In the charge we notice a paragraph which by name refers to certain of the same witnesses mentioned in the bill and instructs the jury that their evidence on cross-examination to the effect that they had heard that appellant admitted he had gone to Terrell and spent the night in a hotel with prosecutrix was admitted only for the purpose of aiding the jury in passing upon the credit to be given to the testimony of said witnesses and were instructed specifically that they could consider it for no other purpose whatsoever. We observe nothing in the present case which would make inapplicable the rule that when a defendant has put in issue his general reputation thit witnesses introduced by him to support it may not, for the purpose of throwing light upon the weight to be given their testimony, be asked if they had not heard of particular and specific acts upon the part of appellant which would be inconsistent with the character which the witnesses were called to prove. Underhill on Crim. Evidence, Secs. 81 and 82; Johnson v. State, 92 Tex.Crim. Rep., 241 S.W. 484; Wright v. State, 266 S.W. 783; Thomas v. State, 95 Tex.Crim. Rep.,252 S.W. 1062. We are not prepared to say the court was in error in permitting the question complained of to be asked. In view of the fact that the court pertinently limited the effect of the testimony elicited thereby we are of he opinion bill number eleven shows no error.

The motion for rehearing is overruled.

Overruled.